of  California 
i  Regional 
Facilit 


THE  LIBRARY 

OF 

THE  UNIVERSITY 
OF  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


OUE   CONSTITUTION 


OUR  CONSTITUTION 


WHY  AND  HOW  IT  WAS  MADE— 
WHO  MADE  IT,  AND  WHAT  IT  IS 


BY 

EDWARD    WATERMAN    TOWNSEND 


XZW   YORK 

MOFFAT,  YARD  &  COMPANY 

1906 


T 
TUi<U 

190C 


Copyright,  1906,  by 

MOFFAT,  YARD  &  COMPANY 

NEW  YORK 


Published,  October,  1906 


PRINTED  BY 
J.  F.  TAPLEY  CO.,  NEW  YORK 


CONTENTS 

CHAPTER  I 

PAGE 

BEGINNINGS  OF  STATES 17 

Stuart  Kings'  influence  in  shaping  Ameri- 
can destiny — Political  training  of  the 
early  Colonists — Bred  in  struggles  for  po- 
litical liberties — First  settlers  in  Virginia 
— Prompt  protests  against  misgovernment 
— Proprietary  government  in  Maryland — 
Connecticut's  Constitution  inspired  by 
Hooker — All  Colonies  secure 'some  degree 
of  representative  government — Three  suc- 
cessful Colonies  founded  by  Liberals  ban- 
ished from  Massachusetts — New  York's 
turbulent  beginning — Carolina  founded 
for  poor  debtors — Government  in  all  Colo- 
nies gradually  assumes  similar  forms — 
Ideas  of  political  freedom  develop  fast. 


CHAPTER  II. 

BEGINNINGS  OP  UNION 42 

The  Mayflower  compact — Its  political  im- 
portance questioned — Hooker's  sermon  in- 


750689 


CONTENTS 

PAGE 

spiration  for  first  American  Constitution 
— An  early  government  by  the  people  in 
Connecticut — First  Confederation  of  Colo- 
nies in  New  England — "Leister's  Con- 
gress" of  1690 — Sovereign,  but  short-lived 
— Penn's  suggestion  for  consolidating  the 
"Provinces" — Jefferson  proposes  a  plan  of 
union — Adopted  by  the  Albany  Congress, 
but  rejected  by  British  Government — 
Strain  on  relations  between  Colonies  and 
Great  Britain — James  Otis  and  Patrick 
Henry  speak  for  Independence — Stamp 
Act  Congress — The  1765  Declaration  of 
Rights — The  tea  tax — Committees  of  Cor- 
respondence— Non-importation — The  Bos- 
ton Tea  Party — The  Congress  of  1774 — 
Parliament  refuses  to  hear  Franklin — 
War  begins — The  Continental  Congress 
gives  Washington  command  of  the  army — 
Issues  the  Declaration  of  Independence — ' 
Frames  the  Articles  of  Confederation. 


CHAPTER  III 

A  STRONG  GOVERNMENT  DEMANDED 71 

Washington's  army  gains  independence 
for  Colonies — Which  Great  Britain  ac- 
knowledges by  the  treaty  of  1783 — The 
Continental  Congress  lacks  popular  sup- 


CONTENTS  7 

PAGE 

port — Political  quacks  disturb  the  States 
— Washington  urges  the  States  to  form  an 
indissoluble  union — The  Articles  not  ade- 
quate for  their  purpose — The  drift  toward 
anarchy  —  Movement  for  a  Constitu- 
tional Convention — Delegates  appointed — 
A  notable  company  of  statesmen  and  pa- 
triots— Washington  made  president  of 
convention — Pen-pictures  of  the  delegates 
— The  roll-call — Intense  political  interest 
— Proceedings  behind  locked  doors — But 
Madison  reports  for  history — Randolph 
submits  a  groundwork  plan — Why  Rhode 
Island  alone  was  not  represented — How 
the  delegates  worked — Sentiment  for 
strong  Federal  government — Washing- 
ton's immortal  speech. 


CHAPTER  IV 

BEGINNING  THE  STRUCTURE 105 

Worship  of  the  Constitution  —  Glad- 
stone's famous  comment — Marshall  and 
Bryce — The  enacting  clause — Purposes  of 
the  Constitution — Legislative  powers — 
House  of  Representatives — Short  and  long 
term  arguments — Qualifications  of  Repre- 
sentatives and  direct  taxes — Slavery  a 
question — The  first  great  Compromise — 


CONTENTS 

PAGE 


Dr.  Franklin  suggests  prayers — The  Sen- 
ate —  Equal  representation  —  The  Vice- 
President — Impeachments — Congress  reg- 
ulates election  of  its  .members — Each 
House  is  judge  of  qualification  of  its  mem- 
bers —  Pay  of  Congressmen  —  Salary 
"grabs" — Separating  the  legislative  from 
the  executive  departments. 


CHAPTER  V 

THE  BUILDERS  TOIL  ON 142 

The  House  originates  revenue  bills — A 
concession  to  the  large  States — How  the 
President  may  approve  or  veto  legislation 
— The  most  important  grant  to  Congress — 
Taxing  for  "protection"  and  taxing  for 
revenue — Direct  taxes  seldom  laid — The 
income  tax — Once  collected,  later  declared 
unconstitutional — The  borroicing  power — 
Paper  bills  unintentionally  made  legal  ten- 
der— A  natural  power  of  government  not 
prohibited  is  permitted — Commerce  regu- 
lation,, foreign  and  interstate — A  brief 
clause  with  tremendous  consequences — Re- 
sult of  another  Compromise — To  regulate 
commerce — NewEngland  agrees  to  slavery 
— Authority  for  naturalizing  foreigners,  to 
coin  money,  to  conduct  postal  affairs — 


CONTENTS  9 

PAGE 

Great  economic  value  of  the  patent  system 
— Congress  controls  the  army  pay — Pro- 
viding for  the  seat  of  government — Im- 
plied powers  of  Congress — Their  vast 
scope,  aided  by  the  "general  welfare" 
clause — How  the  Constitution  has  devel- 
oped. 

CHAPTER  VI 

THE  STRUCTURE  ASSUMES  SHAPE 165 

Limiting  the  powers  of  Congress — Impor- 
tation of  slaves — Period  of  permission 
limited  —  The  habeas  corpus  —  Derived 
from  Magna  Chart  a — Bills  of  attainder 
and  ex  post  facto  laws  prohibited — What 
they  are — Direct  taxes  shall  be  in  propor- 
tion to  population — Export  duties  prohib- 
ited— Preference  for  domestic  ships — Con- 
gress holds  the  purse-strings — Fear  in 
1787  of  titles  of  nobility — Limiting  the 
rights  of  the  States — Nearly  all  sovereign 
powers  denied  to  them — The  nation  to  be 
not  only  a  federation — Also  to  be  a  consoli- 
dation— Some  rights  expressly  granted, 
some  implied — Convention  working  with 
greater  facility — The  Chief  Executive — 
Varied  ideas  concerning  the  Presidency — 
Thirteen  different  lengths  of  term  suggest- 
ed— The  puzzle  how  to  elect — Electoral 


10  CONTENTS 

PAGE 

College  slow  of  adoption — First  successful 
working  of  the  plan — Its  failure — Its 
amendment — The  electoral  commission  of 
1876 — Qualifications  for  the  Presidency — 
The  succession  after  the  Vice-President — 
President's  duties  and  powers — Greatness 
of  the  office. 

CHAPTER  VII 

THE  BUILDERS'  WORK  DONE 194 

Instituting  the  Federal  courts — Great  in- 
fluence of  the  Supreme  Court  in  determin- 
ing character  of  our  Government — Its 
broad  construction  of  the  Constitution — 
Inferior  Federal  courts — Circuit  and  dis- 
trict— Extent  of  the  power  of  Federal 
court — Checked  by  an  early  amendment — 
The  Bill  of  Rights  amendments  affect  judi- 
cial powers — Treason — Giving  comfort  to 
an  enemy — States  must  give  credit  to  each 
other's  acts  and  records — Requisition  of 
fugitives  from  justice — From  slavery — A 
clause  which  helped  toward  the  Civil  War 
— New  States — Convention  knew  many 
would  apply — The  great  domain  to  be 
ruled  as  Territories — How  and  when  Ter- 
ritories are  admitted  to  Statehood — The 
national  guarantee  of  Democracy — By  a 
Republican  form  of  government — Hamil- 


CONTBNTS  11 

PAGE 

ton's  undemocratic  views  —  His  later 
change  of  opinion — When  Federal  troops 
give  aid  to  States — The  Constitution  is  the 
supreme  law  of  the  land — State  officials 
must  be  bound  by  oath  to  support  it — No 
religious  test  for  office — Signing  the  con- 
vention's finished  work — A  Bill  of  Rights 
not  thought  necessary — A  pleasant  close  to 
their  long  labor. 


CHAPTER  VIII 

RATIFICATION  AND  AMENDMENTS 211 

Old  Congress  receives  new  Constitution — 
Objections  to  it — Madison  to  its  defense — 
It  is  proposed  to  the  States — Washington's 
letter  transmitted  with  it — Antifederal- 
ists  oppose  it  os  a  party — Its  friends  rally 
as  the  Federalists — Faults  which  were  al- 
leged— General  demand  for  Bill  of  Rights 
— Excitement  throughout  the  country — 
Madison's  powerful  aids  in  Virginia — Del- 
aware first  to  ratify — Patrick  Henry's 
plan  for  Southern  Confederacy — Defeated 
by  Georgia's  ratifying — Massachusetts' 
strong  convention — Samuel  Adams'  uncer- 
tainty— New  Hampshire  the  ninth  and  de- 
ciding State — Famous  Fourth  of  July, 
1788 — Hamilton's  hard  fight  in  New  York 


12  CONTENTS 

PAGE 

— Old  Congress  calls  for  the  new — Wash- 
ington elected  President  of  United  States 
— First  Congress  proposes  Bill  of  Rights 
amendments  —  Resemblance  to  English 
Bill  of  Rights  of  1689 — Other  amendments 
— Conclusion. 


CHAPTER  IX 

SOME  IMPORTANT  INSPIRATIONS 235 

Magna  Charta  (1215) — Plymouth  Com- 
pact (1620)  — Fundamental  Orders  of 
Connecticut  (1639) — Bill  of  Rights  (Par- 
liament, 1689) — Franklin's  Plan  of  Union 
(1754) — Declaration  of  Rights  (Colonial, 
1765)  — Declaration  of  Independence 
(1776) — Ordinance  for  the  Northwest 
Territory  (1787). 


ARTICLES  OF  CONFEDERATION 288 

CONSTITUTION  OF  THE  UNITED  STATES  OF  AMER- 
ICA   298 

STATISTICS  OF  THIRTEEN  ORIGINAL  STATES 319 


INTRODUCTION 

THE  purpose  of  this  book  is  to  tell  the  story  of  the 
incentives,  making,  ratification  and  amendment  of  our 
Constitution.  The  plan  is,  first,  to  narrate  something 
of  those  conditions  in  England  which  influenced  the 
political  sentiments  of  early  American  colonists  and 
the  significant  events  in  the  founding  of  the  Colonies, 
in  order  that  readers  shall  have  in  mind  what  char- 
acter of  political  bodies  united  under  the  Constitution. 
Next  is  shown  the  growth  of  the  idea  of  union,  the 
causes  which  strengthened  and  spread  it  and  the  forms 
in  which  it  was  expressed  in  famous  documents.  This 
carries  the  narrative  through  the  period  of  govern- 
ment under  the  Articles  of  Confederation  up  to  the 
time  when  public  opinion  resulted  in  the  call  for  the 
Philadelphia  Constitutional  Convention.  Then  some- 
thing is  told  of  the  men  who  met  in  the  Convention, 
how  they  worked,  contended,  compromised  and  finally 
submitted  the  Constitution  they  had  framed  to  the 
people;  of  the  struggle  for  its  ratification,  the  early 
demand  for  the  first  ten  Amendments,  and  the  election 
of  Washington  as  the  first  President  under  its  pro- 
vision. Finally  the  story  tells  what  were  the  causes 
which  led  to  the  further  amendment  of  the  Constitu- 
tion, and  what  it  is  to-day  as  developed  by  custom  and 
interpreted  by  courts. 

No  pretense  is  made  that  any  hitherto  unused  ma- 
terial is  used  in  this  book:  its  claim  for  usefulness 

13 


14  INTRODUCTION 

rests  upon  its  scope  and  plan,  the  selection  of  material 
and  the  sequence  and  manner  of  presenting  it.  Its 
facts  are  taken  from  a  multitude  of  works  telling 
either  much  more  or  much  less;  works  ranging  from 
leaflets  on  a  single  minor  event,  to  ponderous  histories 
having  so  much  more  ground  to  cover  that  the  one 
story  told  here  in  full  is  there  necessarily  but  sketched. 
The  author's  observation  has  convinced  him  that  the 
want  of  a  plainly  told  story  of  our  Constitution  is  re- 
sponsible for  the  lack  of  general  knowledge  of  what 
he  here  seeks  to  impart.  If  this  book  give  to  only  a 
few  people  a  little  more  knowledge  about  our  Consti- 
tution the  author  will  be  repaid — if  it  stimulate  a 
further  search  in  the  rich  storehouse  of  American 
history  he  will  be  more  than  repaid. 

EDWARD  WATERMAN  TOWNSEND. 
Montclair,  New  Jersey,  1906. 


OUR   CONSTITUTION 


CHAPTER  I 

BEGINNINGS  OF  STATES 

THE  tendency  and  spirit  of  political  belief  in  Eng- 
land during  the  period  of  the  founding  of  the  Ameri- 
can Colonies  had  such  an  intimate  relation  with  the 
causes  of  Colonial  political  movements,  so  great  an 
influence  in  shaping  their  effects,  that  it  is  necessary 
here  first  to  consider  them  a  little.  Edward  VI,  in- 
fluenced by  Cranmer,  first  Protestant  Archbishop  of 
Canterbury,  had  made  England  officially  Protestant. 
Bloody  Mary,  Edward's  successor,  burnt  Cranmer,  and 
endeavored  to  restore  the  English  Church  to  Borne; 
but  John  Knox  had  returned  to  Scotland  from  preach- 
ing in  Geneva,  where  Calvin  had  established  a  Re- 
public, and  was  more  Calvinistic  than  his  great 
teacher.  The  Protestants  were  growing  stronger  when 
Elizabeth,  succeeding  Mary,  began  her  long  reign,  and 
what  was  then  deemed  religious  toleration  permitted 
Puritanism  to  flourish  and  gain  courage,  though  its 
efforts  to  regulate  the  Established  Church  were  un- 
availing. But  in  1603,  James  I,  a  Stuart,  succeeded 
Elizabeth  on  the  English  throne,  and  we  soon  begin 
to  see  the  causes  which  sent  such  a  zealous  company 
of  political  and  religious  reformers  to  America.  "The 
Stuarts,"  says  a  thoughtful  German  historian,  "by 
their  arrogance,  their  exaggerated  idea  of  the  sacred- 
ness  of  their  authority,  their  severity,  caprioiousness 

17 


.18  OUR    CONSTITUTION 

and  obstinacy  were  totally  unfitted  to  be  rulers."  Yet, 
to  such  a  ruler,  a  thousand  Puritan  ministers  sent  a 
petition  praying  for  the  reform  of  what  they  deemed 
abuses  in  the  Anglican  Church.  James,  "the  wisest 
fool  in  Christendom,"  heard  only  those  who  opposed 
the  Puritans,  lectured  the  petitioners  roughly,  and 
denied  all  they  asked.  That  was  the  famous  Hampton 
Court  Conference  whose  decision  quickened  the  emi- 
gration of  Puritans  from  England.  Some  of  those 
who  fled  to  find  freedom  from  what  were  to  them 
hateful  religious  ceremonies,  went  to  Leyden,  in  Hol- 
land ;  and  of  that  number,  some,  dissatisfied  with  their 
Dutch  surroundings,  made  the  first  English  settlement 
in  New  England.  Most  of  those  who  followed,  whether 
Puritan,  Episcopalian  or  Catholic,  took  with  them  to 
America  some  measure  of  the  political  beliefs  which 
were  growing  and  expanding  in  England. 

Englishmen  had  long  had  Constitutional  rights,  for 
in  1215,  King  John  was  forced  to  grant  the  Magna 
Charta,  which  gave  the  suffrage  not  only  to  the  great 
feudal  lords  and  the  inferior  nobility,  but  to  a  lower 
grade  of  citizens,  made  regulations  for  the  benefit  of 
the  whole  nation,  prohibited  arbitrary  taxes,  provided 
regular  courts  of  justice,  and  that  no  man  could  be 
tried  except  by  the  law  of  the  land.  While  English- 
men had  not  always  freely  exercised  their  Constitu- 
tional rights,  these  had  not  been  lost  sight  of;  so,  when 
James  I  began  to  display  his  exaggerated  ideas  of  the 
absolutism  of  his  powers,  Parliament  had  answered: 
"Our  liberties  are  our  freehold,  and  the  fairest  flower 
that  groweth  in  the  garden  of  the  Commons,  and  if 
they  be  once  nipped  they  will  never  grow  again."  Such 
was  the  political  spirit  moving  those  who  were  going 
to  America  during  the  reign  of  James  I. 


BEGINNINGS    OF    STATES  19 

Then  came  Charles  I  to  the  English  throne,  at  a 
time  when  on  the  Continent  royalty  had  nearly  every- 
where regained  unlimited  power;  in  Spain,  Italy  and 
Austria  rulers  were  again  absolute,  in  France  the 
kings  would  have  no  States-General,  the  ancient  As- 
sembly of  Nobles,  Clergy  and  Citizens.  So  Charles, 
too,  sought  absolutism.  Two  powerful  aids  to  this 
end  were  the  Earl  of  Strafford  with  the  Star  Chamber, 
and  Bishop  Laud  with  the  High  Commission.  The 
Star  Chamber  assumed  the  power  to  decide  questions 
relating  to  the  property,  liberty,  even  life  of  any 
Englishman,  and  Strafford  used  it  to  enrich  Charles; 
the  High  Commission  was  used  by  Laud  to  punish  the 
enemies  of  Charles — and  he  deemed  every  one  his 
enemy  who  denied  his  right  to  absolutism.  English- 
men recalled  their  Magna  Charta,  and  a  Parliament 
passed  the  Petition  of  Eight,  a  statutory  restriction  of 
the  power  of  the  Crown,  which  Charles  answered  by 
dismissing  Parliament.  If  his  lawmakers  would  not 
lay  taxes  for  him  the  Earl  of  Strafford  would — and  the 
Ship  Money  tax  was  imposed.  Hampden,  a  cousin  of 
Cromwell,  refused  to  pay  a  tax  not  levied  by  Parlia- 
ment, and  went  to  jail  the  more  deeply  to  impress  upon 
his  countrymen  his  protest  against  an  unconstitutional 
ruler.  Then  Charles  tried  Parliament  again,  and  they 
passed  the  Grand  Remonstrance,  threatening,  when 
the  Lords  obstructed,  that  the  Commons  would  "save 
the  country  alone."  Strafford  and  Laud  were  be- 
headed, the  English  and  Scotch  Parliaments  were  al- 
lied against  the  King  and  raising  troops;  a  civil  war 
for  Constitutional  rights  was  fought,  Charles  lost  his 
head  on  the  scaffold;  and  Parliament  ruled  under  the 
Agreement  of  the  People — of  the  people,  but  6y  the 
army.  Then  came  Oliver  Cromwell,  Lord  Protector  of 


20  OUR  CONSTITUTION 

the  Commonwealth  of  England,  with  his  Constitution, 
the  Instrument  of  Government,  adopted  by  Cromwell 
and  his  Council  of  Officers.  The  Puritans  numbered 
but  one-tenth  of  the  nation,  yet  they  could  raise  up 
one  of  their  number  to  rule  England  and  dictate  laws 
to  Europe.  Knox  had  been  trained  in  the  Republic  of 
Geneva.  Political  liberty  was  part  of  the  Puritan  re- 
ligion. Such  were  the  times  which  impressed  political 
ideas  on  the  English  who  emigrated  to  America  dur- 
ing the  reign  of  Charles  I,  the  rule  of  the  Parliament, 
and  of  Cromwell,  from  1625  to  1660. 

Cromwell  died;  the  majority,  opposed  to  Puritanism, 
brought  back  two  more  Stuarts,  Charles  II  until  1685, 
and  James  II  for  the  three  following  years.  Charles 
attempted  monstrous  usurpations  of  his  subjects' 
rights,  and  Parliament  in  self-defense  passed  the  Ha- 
beas Corpus  Act,  "one  of  the  chief  guards  of  English 
liberty."  Charles  saved  the  succession  to  the  English 
throne  for  his  scandalous  brother  James  only  by  dis- 
missing Parliament  when  it  was  about  to  pass  a  bill 
to  exclude  him.  But  James's  rule  was  short:  he  was 
soon  driven  from  England  by  the  great  Revolution  of 
1688,  which  sent  him  to  die  in  exile.  William  and 
Mary  were  called  to  the  throne,  but  they  first  had  to 
subscribe  to  the  principles  declared  in  the  Bill  of 
Rights  (of  which  we  shall  hear  much  in  connection 
with  our  Constitution),  passed  by  Parliament  for  the 
guidance  of  the  new  rulers.  That  bill,  says  Macaulay, 
"contained  the  germ  of  the  law  which  gave  religious 
freedom  to  the  Dissenter,  of  the  law  which  secured 
the  independence  of  the  judges,  of  the  law  which  lim- 
ited the  duration  of  Parliament,  of  the  law  which 
placed  the  liberty  of  the  press  under  the  protection  of 
juries,  of  the  law  which  prohibited  the  slave  trade,  of 


BEGINNINGS    OF    STATES  21 

the  law  which  abolished  the  sacramental  test,  of  the 
law  which  relieved  the  Roman  Catholics  from  all  civil 
disabilities,  of  the  law  which  reformed  the  representa- 
tive system,  of  every  good  law  which  has  been  passed 
during  a  hundred  and  sixty  years."  Such  were  the 
events  which  inspired  political  opinions  in  the  minds 
of  the  English  who  came  to  America  in  the  reigns  of 
the  Stuarts  after  the  Restoration. 

Not  all  those  early  emigrants  from  England  to 
America  were  Puritans:  there  were  Episcopalians, 
Presbyterians,  Baptists,  Quakers,  Catholics;  but  they 
had  all  been  through  struggles  for  political  liberty, 
rebellions  against  absolutism;  they  were  all  familiar 
with  some  degree  of  Constitutional  government.  Per- 
haps it  was  inevitable,  in  the  conditions  of  greater  lib- 
erty enjoyed  by  the  Colonies,  that,  among  the  descend- 
ants of  such  settlers,  there  should  at  last  come  a  de- 
mand for  complete  political  freedom — separation  from 
England — even  had  they  not  suffered  a  single  one  of 
the  wrongs  charged  against  George  III  in  the  Declara- 
tion of  Independence. 

Not  until  1607  was  a  permanent  settlement  of  Eng- 
lishmen made  in  the  territory  which  became  the  State 
of  Virginia,  nor  was  any  organized  commercial  or 
political  attempt  made  to  found  a  colony  there  until 
that  year,  although  as  early  as  1584  Sir  Walter  Raleigh 
sent  out  the  first  of  his  unsuccessful  private  expedi- 
tions. In  1606,  King  James  I  gave  to  two  commercial 
companies  charters  bestowing  upon  them  all  the  terri- 
tory in  America  from  34°  to  45°  north  latitude;  that  is, 
as  we  might  now  roughly  describe  it,  from  where  the 
northern  boundary  of  South  Carolina  meets  its  coast 
line  to  the  point  of  meeting  of  Maine's  northern  bound- 
ary and  its  coast  line.  With  this  enormous  grant  of 


22  OUR    CONSTITUTION 

land  James  also  gave  a  political  charter  which,  as  a 
working  plan  of  colonial  government,  was  inexpedient 
and  cumbersome,  and  little  effort  to  administer  under 
it  was  ever  made.  Among  its  many  details  it  pro- 
vided for  each  Colony  two  councils,  one  to  be  ap- 
pointed by  the  Crown,  the  second  to  be  of  residents 
to  be  appointed  by  the  Royal  Council.  The  nearest 
approach  to  a  guarantee  of  the  colonists'  rights  as 
loyal  English  subjects,  was  a  clause  providing  that 
"whoever  shall  dwell  and  inhabit  within  every  and 
any  of  our  several  Colonies  *  *  *  shall  have  and 
enjoy  all  liberties,  franchises  and  immunities  *  *  * 
as  if  they  had  been  abiding  and  born  within  this  our 
realm  of  England."  The  most  striking  political  prin- 
ciple of  the  charter  was  a  provision  for  the  communal 
holding  of  land  and  other  property;  and  if,  as  has  been 
suggested  was  the  fact,  James  was  the  author  of  the 
charter,  it  is  an  interesting  thought  that  communism, 
as  a  political  practice,  was  first  imposed  upon  an 
American  people  by  a  king!  The  men  who  organized 
the  Virginia  expedition  were  little  concerned  with 
the  political  aspect  of  the  venture;  they  were  familiar 
with  company  control  of  trade,  as  with  the  Baltic  and 
the  East  Indies,  and  it  was  as  in  a  commercial  trading 
business,  rather  than  as  in  a  colonization  effort,  that 
they  interested  themselves  and  invested  their  money. 
That  they  looked  for  large  and  immediate  returns 
seems  probable  when  we  consider  the  general  belief  in 
England  at  that  time  concerning  America.  This  belief 
is  reflected  in  an  English  play  written  in  1605,  in  which 
a  character  named  Seagull,  speaking  of  America,  says, 
"Gold  is  more  plentiful  there  than  copper  with  us. 
Why,  man,  all  their  dripping  pans  are  of  pure  gold, 
and  all  their  chains,  with  which  they  chain  up  their 


BEGINNINGS    OF    STATES  23 

streets,  are  massive  gold,  and  for  rubies  and  diamonds 
they  go  forth  in  holidays  and  gather  them  up  by  the 
seashore  to  hang  on  their  children's  coats." 

An  idle,  discontented,  reckless  company  of  men, 
numbering  about  one  hundred  and  fifty,  were  enrolled 
for  the  first  expedition  which  left  England  in  three 
small  ships  early  in  the  year  and  landed  in  James- 
town on  the  13th  of  May,  1607.  They  found  not  gold 
and  rubies,  but  a  rich  soil  to  be  cleared  for  planting, 
and  defended  from  crafty  and  hostile  savages.  There 
were  a  few  men  of  courage,  intelligence  and  honesty 
in  the  company;  but  only  one,  Captain  John  Smith, 
seems  to  have  possessed,  besides  the  qualities  of  cour- 
age and  honesty,  those  of  a  leader  capable  of  recog- 
nizing the  conditions,  and  of  knowing  what  to  do  when 
confronted  with  the  problem  of  meeting  such  condi- 
tions with  a  sorry  crew  of  dazed  and  disappointed  men. 
He  brought  about  enough  military  organization  to 
repel  Indian  attacks,  soon  made  friends  with  the  In- 
dians and  traded  with  them  for  food  needed  to  keep 
his  companions  from  starving;  induced  his  thriftless 
"gentlemen"  to  perform  some  labor  in  planting,  and 
building  forts;  and  did  most  of  the  things  which  pre- 
served the  colonists  during  those  first  two  dark  years. 
But  he  did  not  find  gold,  did  not  even  report  favorably 
on  the  commercial  prospects — and  was  censured  by 
the  Company.  A  successor  was  sent  out  with  author- 
ity to  rule  under  martial  law  without  the  advice  of  a 
Council ;  so  the  earliest  change  in  the  colonists'  politi- 
cal state  deprived  them  of  even  such  vague  rights  as 
were  first  granted  to  them.  In  1611,  Sir  Thomas  Dale 
was  appointed  Governor,  and  during  his  administra- 
tion the  colony  had  its  first  strong  growth.  This  was 
chiefly  owing  to  his  repeal  of  the  charter  provision  for 


24  OUR    CONSTITUTION 

communal  holding  of  land,  and  his  introduction  of 
individual  proprietorship.  This  infused  energy  into 
agriculture,  induced  a  better  class  of  immigrants  and 
gave  strength,  solidity  and  comparative  wealth  to  the 
Colony. 

Dale  was  succeeded  in  1617  by  Thomas  Argall,  a 
forthright  rascal  who  robbed  and  misgoverned  the 
colonists  until  he  aroused  them  to  a  protest  which 
had  an  important  and  lasting  effect  upon  their  politi- 
cal condition.  Fortunately  for  the  struggling  settlers, 
the  protest  they  sent  to  England  was  received  just 
when  the  current  of  patriotic  feeling  which  was  to 
result  in  the  Commonwealth  was  gaining  strength,  and 
their  grievances  reached  not  only  the  Company  but 
the  public,  and  sermons  and  pamphlets  aided  their 
cause.  Finally  they  were  represented  in  London  by  an 
informed  and  sympathetic  spokesman,  George  Yeard- 
ley,  who  had  served  in  Virginia  as  a  deputy  under 
Dale.  The  London  Company,  as  the  commercial  body 
holding  the  Virginia  charter  was  called,  was  reorgan- 
ized, a  number  of  statesmen  prominent  in  the  patriotic 
movement  were  elected  members  of  its  controlling 
board,  and  among  them,  it  is  interesting  to  note,  was 
the  Earl  of  Southampton,  friend  and  patron  of  Shake- 
speare. The  reorganized  Company,  supported  by  pub- 
lic opinion  and  intelligently  advised  by  Yeardley,  gave 
the  colonists  more  than  they  had  asked  for:  they  had 
prayed  only  for  the  recall  of  the  obnoxious  Argall,  but 
in  addition  to  this  boon  a  greater  one  was  granted. 
Yeardley,  now  Sir  George,  returned  to  Virginia  as 
Governor  and  carried  with  him  a  new  charter  under 
which  the  colonists  were  permitted  to  elect  a  repre- 
sentative Assembly,  the  first  to  exist  in  America. 
Yeardley,  in  1719,  issued  a  call  for  an  election,  and  the 

~  s 


BEGINNINGS    OF    STATES  25 

thankful  Virginians  responded  by  sending  twenty-two 
representatives  from  eleven  local  areas  known  vari- 
ously as  hundreds,  towns,  cities,  gifts,  and  plantations. 
To  this  Assembly  was  given  the  name  of  House  of 
Burgesses,  which  suggests  that  the  chief  local  unit 
was  the  borough,  or  town.  In  the  same  year  the  first 
cargoes  of  slaves  were  landed  in  Virginia  by  Dutch 
and  English  privateers,  and  a  law  of  the  Burgesses 
of  that  year  recognizes  the  institution  of  slavery. 

In  1621,  a  written  constitution  was  granted  to  the 
colonists,  confirming  the  rights  less  formally  granted 
two  years  before,  and  specifying  others.  This,  the  first 
written  constitution  for  a  political  body  in  America, 
was  the  work  of  Sir  Edwin  Sandys,  a  reformer  in- 
tensely disliked  by  King  James,  who  denounced  the 
London  Company  and  its  affairs,  as  conducted  under 
the  influence  of  Sandys,  as  "a  seminary  for  a  seditious 
Parliament."  James  demanded  the  surrender  of  the 
Company's  charter,  which  was  refused.  The  King  then 
procured  a  writ  of  quo  warranto,  a  proceeding  under 
which  a  court  enquires  by  what  right  a  person  or  cor- 
poration holds  a  public  office,  franchise  or  privilege. 
The  court  which  heard  the  case  decided,  in  1624,  that 
the  charter  was  forfeited.  This  ended  Virginia's  exist- 
ence as  a  corporation  colony  and  inaugurated  its 
career  as  a  Royal  Colony;  ended  the  first  and  began 
the  second  period  of  Virginia's  political  history.  There 
was  no  immediate  change  in  the  young  State's  rela- 
tions with  the  mother  country;  James  continued  Sir 
Francis  Wyatt  as  Governor,  as  did  his  son,  Charles  I, 
who  succeeded  to  the  English  throne  in  1625.  During 
the  reign  of  Charles  the  Colony  prospered  materially, 
and  as  the  King's  own  troubles  at  home,  due  to  the 
political  unrest  which  resulted  in  his  execution  and 


26  OUR    CONSTITUTION 

the  supremacy  of  Cromwell,  kept  his  attention  fully 
occupied,  the  Burgesses,  without  royal  interference, 
enacted  a  number  of  laws  tending  to  strengthen  the 
independence  of  the  local  government. 

But,  while  emphasizing  their  freedom  in  local  af- 
fairs, the  Virginians  remained  intensely  loyal,  and 
lamented  the  execution — "murder,"  they  called  it — of 
Charles,  and  threatened  resistance  to  the  commission 
sent  out  by  Cromwell  in  1652  to  secure  the  Colony's 
submission  to  the  Commonwealth.  The  spirit  of  re- 
bellion seems  to  have  subsided  with  but  little  friction, 
judging  from  the  fact  that  the  Assembly  elected  the 
three  successive  Puritan  Governors  without  coercion 
by  Parliament.  The  Colony  did,  however,  clash  with 
Cromwell  in  another  and  more  important  matter;  one 
which  marked  the  beginning  of  the  precise  kind  of 
mother-country  interference  with  American  affairs 
which  finally  led  to  the  Revolution.  In  1642,  Sir  Wil- 
liam Berkeley  was  sent  by  Charles  as  Governor  of  Vir- 
ginia, and  took  with  him  royal  commands  to  enforce 
a  shipping  law  requiring  that  colonial  products  be 
shipped  to  English  ports  only.  Berkeley  never  made 
a  serious  attempt  to  enforce  this  restrictive  measure, 
but  Cromwell  did;  and  his  Parliament  passed  the 
famous  Navigation  Acts  which  provided  that  no 
products  be  imported  into  English  ports  except  in 
English  ships  or  the  ships  of  the  producing  country. 
Another  Act  provided  that  "None  of  the  products  of 
the  English  plantations  or  factories  *  *  *  in  *  *  * 
America  shall  be  carried  elsewhere  (except  to  other 
plantations)  till  they  be  first  landed  in  England,  under 
forfeiture  of  ships  and  cargoes."  Virginia  refused  to 
obey  these  laws  with  such  show  of  spirit  that  Crom- 
well did  not  coerce  her,  and  thus  again  the  colonists 


BEGINNINGS    OP    STATES  27 

gained  courage  and  confidence  in  the  spirit  of  re- 
bellion against  unjust  laws.  When  the  Common- 
wealth ended,  and  the  Stuarts  were  restored  to  the 
English  throne,  Virginia,  under  Charles  II  and  James 
II,  from  1660  to  1688,  maintained  tranquil  relations 
with  the  royal  government,  obtaining  from  Charles,  in 
1680,  the  right  for  its  House  of  Burgesses  to  sit 
separately,  instead  of  jointly  with  the  royal  council, 
as  had  been  the  custom. 

Then  for  three-quarters  of  a  century  there  occurred 
in  the  fast-growing  State  but  few  political  changes 
which  we  need  to  consider  as  affecting  the  Colony's 
political  status.  Like  all  the  other  colonies  whose 
Governors  were  appointed  by  the  Crown,  Virginia  was 
in  continual  strife  of  more  or  less  turbulence,  main- 
tained on  behalf  of  the  popular-rights  majority  by  a 
vigilant  and  assertive  Assembly,  on  behalf  of  the 
Tories  who  believed  in  royal  prerogative,  by  the 
Crown  Governors.  Virginia's  government  at  this 
period,  and  as  it  remained  until  the  Revolution,  was 
a  Colonial  copy  of  the  royaj  British  model:  the  Gov- 
ernor represented  the  King,  the  Council  and  House  of 
Burgesses  represented  Parliament.  The  Governor  pos- 
sessed the  veto  power  as  to  all  legislation,  and  could 
convoke  and  dissolve  the  Assembly.  The  Council, 
twelve  in  number,  was  appointed  by  the  Governor. 
The  Burgesses,  in  1760,  numbered  one  hundred  and 
ten,  two  from  each  county  and  one  each  from  James- 
town, Williamsburg,  Norfolk,  and  from  William  and 
Mary  College.  The  right  to  vote  for  Burgesses  was 
restricted  to  freeholders  possessed  of  real  and  personal 
estate  valued  at  more  than  one  hundred  pounds.  An 
Act,  to  become  a  law,  must  be  passed  by  each  House 
separately,  approved  by  the  Governor  and  ratified  by 


28  OUR    CONSTITUTION 

« 

the  King.  The  right  to  trial  by  jury  was  unques- 
tioned. 

Had  the  great  Duke  of  Buckingham  not  been  of- 
fended by  the  Spaniards  in  the  negotiations  for  the 
,  marriage  of  the  Prince  of  Wales,  afterwards  Charles  I, 
with  the  Princess  of  Spain,  Maryland  might  have  re- 
mained a  part  of  Virginia.  There  was  in  the  King 
James  Council  one  Sir  George  Calvert  who  strongly 
urged  the  marriage.  This  he  said  he  did  because  the 
honor  of  England  was  involved,  but  it  was  charged 
that,  being  a  Catholic,  he  urged  the  marriage  because 
it  would  strengthen  the  cause  of  Catholicism.  Calvert 
was  a  wise  and  discreet  man  who  knew  that  even  the 
friendship  of  James  would  not  save  him  politically  if 
he  continued  to  oppose  Buckingham,  so  he  withdrew 
from  office,  was  made  Baron  Baltimore  by  James,  and 
asked  of  the  Sovereign  as  a  further  favor  a  grant  of 
land  in  America.  Lord  Baltimore  was  familiar  with 
Colonial  affairs,  having  settled  the  business  of  the  Vir- 
ginia Company  when  its  charter  was  forfeited.  James 
made  him  a  grant  of  the  territory  of  Maryland,  which 
grant  was  confirmed  to  his  son,  Cecil,  the  second  Lord 
Baltimore,  by  Charles  I,  when  the  first  lord  and 
James  I  were  both  dead.  The  delay  in  the  confirma- 
tion was  owing  to  protests  by  Virginia  against  this 
grant  of  land  supposed  to  belong  to  that  Colony. 

Cecil,  carrying  out  his  father's  policy,  sought  a 
refuge  for  his  fellow-Catholics,  rather  than  to  found  a 
Catholic  State,  and  the  expedition  he  sent  out  under 
his  brother  Leonard,  of  about  300  colonists,  numbered 
as  many  Protestants  as  Catholics.  They  landed  March, 
1634,  on  the  east  shore  of  the  Potomac,  a  little  above 
where  it  empties  into  Chesapeake  Bay,  and  founded 
there  the  town  of  St.  Marv.  Besides  the  rich  terri- 


BEGINNINGS    OF    STATES  29 

tory  given  outright  to  Lord  Baltimore,  he  was  granted 
by  Charles  "as  ample  rights,  jurisdiction,  privileges, 
prerogatives,  royalties,  liberties,  immunities  and  royal 
rights  as  any  Bishop  of  Durham  within  the  Bishopric 
or  County  Palatine  of  Durham  within  our  kingdom 
of  England."  A  palatine  is  a  noble  invested  with 
royal  privileges,  and  a  county  palatine  is  a  county 
over  which  a  noble  or  bishop  had  sovereign  jurisdic- 
tion, as,  at  that  time,  had  the  Bishop  and  Count  Pala- 
tine of  Durham  County.  Therefore,  it  is  seen,  Lord 
Baltimore  had  transferred  to  him,  in  addition  to  the 
absolute  ownership  of  the  province  of  Maryland,  rights 
of  sovereignty  inherent  in  the  Crown ;  hence  Maryland, 
a  proprietary  Colony,  was  sometimes  called  the  Pala- 
tinate. Besides  holding  title  to  all  the  land  the  Pro- 
prietary controlled  all  patronage,  lay  and  clerical, 
from  Governor  down  to  the  smallest  office.  In  the 
early  years,  before  the  settlements  and  plantations  ex- 
tended over  a  large  area,  the  freemen  assembled  at 
St.  John  to  consult  with  the  Governor's  Council  re- 
garding legislation,  but  as  the  area  of  settlement  grew, 
they  sent  representatives  to  a  House  of  Burgesses,  and 
in  1647  the  two  law-making  bodies  sat  separately.  To 
some  degree,  legislation  was  controlled  by  the  Pro- 
prietary until  the  Kevolution,  except,  of  course,  dur- 
ing the  two  periods  when  Maryland  was  a  Crown 
Colony.  But  there,  as  in  Virginia,  and  other  Colonies, 
the  representatives  from  time  to  time  gained  conces- 
sions of  legislative  powers,  and  insisted  with  grow- 
ing spirit  upon  freedom  to  regulate  their  local  affairs, 
and  were  in  frequent  opposition  to  the  Proprietary 
over  questions  of  taxation.  But  the  Calverts  were 
wise  rulers,  tolerant  beyond  their  time  in  religious 
legislation,  and  in  executive  acts  relating  to  the  colo- 


30  OUR    CONSTITUTION 

nists'  worldly  affairs  notably  free  from  unjust  exerctee 
of  their  extraordinary  powers. 

Cromwell  interrupted  the  Calvert  rule  by  sending  to 
Maryland  a  Commission  to  take  charge  of  the  Colony, 
but  the  Commission  imposed  such  oppressive  meas- 
ures against  "Catholics,  Episcopalians,  and  everybody 
else  who  disagreed  with  the  Puritans"  that  even  Crom- 
well rebuked  their  excessive  zeal  by  restoring  the 
Colony  to  the  Proprietary,  who  at  once  re-enacted  the 
Toleration  Act  of  1649.  The  second  interruption  to 
Proprietary  rule  occurred  soon  after  William  and 
Mary  became  Sovereigns  of  England.  Lord  Balti- 
more's messenger,  with  orders  for  Maryland  to  pro- 
claim the  new  Sovereigns,  died  at  sea,  and  the  message 
was  not  delivered.  The  resulting  delay  of  the  Colony 
in  proclaiming  its  loyalty  caused  William  to  declare 
Maryland  a  royal  Colony,  in  1691.  But  Benedict  Cal- 
vert, fourth  Lord  Baltimore,  became  a  Protestant  in 
1715,  and  the  Crown  restored  to  him  all  his  inherited 
rights  in  Maryland.  These  in  turn  were  inherited  by 
his  son,  Charles,  and  finally  by  Frederic,  sixth  and  last 
Lord  Baltimore.  In  all,  the  Calverts  were  less  at- 
tacked by  their  Assemblies  than  were  the  Governors 
of  other  Colonies,  and  this  was  because  of  their  popu- 
larity, earned  by  their  liberality;  they  were  less  sub- 
jected to  assaults  on  their  rights  in  England  because 
there,  too,  their  high  character  as  rulers  was  recog- 
nized. Their  chosen  capital,  St.  John,  was  abandoned 
by  the  Royalists  during  the  second  interruption  of  the 
Proprietary  rule,  and  Providence,  now  Annapolis,  then 
a  Puritan  stronghold,  became  the  capital.  In  1732  the 
Proprietary,  at  the  request  of  the  Burgesses,  agreed 
that  in  all  cases  not  provided  for  by  Colonial  statutes, 
English  law  should  prevail. 


BEGINNINGS   OF    STATES  31 

Connecticut  is  usually  classed  as  a  Charter  Colony, 
sometimes  as  a  republic,  and  one  writer  designates  it, 
as  many  do  the  United  States,  as  a  democratic  repub- 
lic. If  we  should  call  Connecticut  the  Constitutional 
Colony  the  name  would  at  least  remind  us  that  it  was 
the  first  Colony  to  administer  its  government  under  a 
written  constitution,  and,  more  important,  that  it 
adopted,  in  1639,  the  "first  written  Constitution  which 
created  a  government."  In  1633,  a  little  party  from 
Plymouth  Colony — Plymouth  and  Massachusetts  were 
then  separate  Colonies,  as,  later,  were  Connecticut  and 
New  Haven — went  into  the  Connecticut  valley  and 
founded  the  town  of  Windsor.  A  second  company,  re- 
cruited from  the  Dorchester  congregation,  soon  left 
Massachusetts  and  founded  the  town  of  Wethersfield 
in  the  Connecticut  valley,  and  in  1636  the  most  impor- 
tant desertion  from  the  Bay  Colony  took  place,  when 
Thomas  Hooker,  minister  of  Newtown,  with  a  follow- 
ing of  about  one  hundred  of  his  congregation,  walked 
through  the  intervening  wilderness  and  founded  the 
third  town  of  the  valley,  Hartford. 

It  would  be  interesting  to  review  at  length  the 
causes  of  the  emigration  of  those  Puritans  from  the 
Puritan  stronghold;  but  all  that  we  need  to  recall  is 
this:  In  1629,  John  Endicott,  one  of  the  patentees 
under  the  charter  of  the  Massachusetts  Company,  ex- 
pelled two  ministers  because  they  had  collected  a  con- 
gregation to  whom  they  read  the  Church  of  England 
service.  In  1631,  Massachusetts  enacted  a  law  that 
no  one  might  be  a  freeman  unless  he  belonged  to  a 
church — but,  it  seems,  that  if  he  belonged  to  the  Epis- 
copal Church  he  would  be  expelled — and  a  little  later 
the  law  was  altered  so  that  a  non-churchman  might 
not  even  vote  at  a  town  meeting.  In  1633,  Thomas 


32  OUR  CONSTITUTION 

Hooker,  a  powerful  preacher  and,  as  the  event  proved, 
the  wisest  statesman  numbered  among  the  early 
Puritans  in  America,  came  from  Holland,  where  he 
had  lived  a  few  years  to  escape  religious  persecution 
in  England,  and  was  made  minister  of  Newtown.  He 
was  opposed  to  the  religious  test  for  citizenship,  and 
wrote  to  Governor  Winthrop,  of  Massachusetts:  "In 
matters  which  concern  the  common  good,  a  general 
council  chosen  by  all,  to  transact  business  which  con- 
cerns all,  I  conceive  most  suitable  to  rule  and  most 
safe  for  the  relief  of  all."  It  is  interesting  to  make  a 
comparison  of  that  view  of  government  and  another: 


"A  council  (govern- 
ment) chosen  by  all,  to 
transact  business  for  all, 
is  most  suitable  to  rule 
for  all." 


"Government  of  the 
people,  by  the  people,  for 
the  people,  shall  not  per- 
ish from  the  earth." 


The  three  Connecticut  towns,  Windsor,  Wethers- 
field,  and  Hartford,  were  united,  in  1639,  into  the 
Colony  of  Connecticut  by  a  constitution  known  as  the 
Fundamental  Orders,  which  will  be  considered  in  an- 
other division  of  this  work.  In  that  same  year  John 
Davenport,  a  minister,  and  Theophilus  Eaton,  a  Lon- 
don merchant,  founded  the  town  and  Colony  of  New 
Haven,  under  a  compact  which  accepted  the  Scrip- 
tures as  affording  all  rules  necessary  for  the  govern- 
ment of  civil  affairs  as  well  as  moral  conduct. 

John  Winthrop,  son  of  the  Massachusetts  Governor, 
with  whom  Hooker  had  differed,  and  a  man  of  more 
democratic  views  than  his  father,  was  chosen  Gover- 
nor of  Connecticut  in  1657,  and  a  few  years  later  went 
to  England,  where  he  secured  the  charter  for  the  Gov- 
ernor and  Company  of  Connecticut,  which  gave  royal 


BEGINNINGS   OF  STATES  33 

sanction  to  the  Constitution  of  the  young  republic  set 
up  by  the  men  who  had  fled  from  the  intolerant  gov- 
ernment of  Massachusetts.  The  charter  confirmed  to 
the  freemen  the  right  to  choose  the  Governor,  Deputy 
Governor,  assistants  and  representatives.  One  clause 
stipulated  that  the  colonists  should  not  make  laws 
contrary  to  those  of  England,  a  formal  restriction 
which  did  not  arrest  the  growth  or  limit  the  freedom 
of  the  colonists.  One  important  provision  of  the  char- 
ter immediately  enlarged  and  strengthened  Connecti- 
cut by  including  within  its  territory  and  jurisdiction 
the  New  Haven  settlements.  This  absorption  New 
Haven  resisted  until  threatened  with  annexation  by 
New  York. 

Once  the  charter  of  Connecticut  was  threatened: 
In  1675,  the  Royal  Privy  Council  created  a  standing 
committee  called  the  Lords  of  the  Committee  of  Trade 
and  Plantations,  generally  called  the  Lords  of  Trade. 
In  1677,  this  committee  sent  out  a  commission,  at  the 
head  of  which  was  Edward  Randolph,  to  inquire  into 
Colonial  affairs.  Some  charges  Randolph  made  against 
Connecticut  were  discovered  to  be  of  so  serious  a 
nature  that  the  King  proceeded  against  its  charter  by 
quo  warranto.  Randolph  had,  indeed,  made  serious 
charges,  among  them  the  undoubtedly  true  one  that 
Connecticut  was  an  independent  government.  It 
proved  its  independence  by  refusing  to  surrender  the 
charter;  and  its  calm  and  wise  politicians  kept  the 
question  open  until  the  accession  of  William  and  Mary, 
when,  in  1790,  the  charter  (said  to  have  been  hidden  in 
an  oak  tree  when  demanded  by  the  nominal  Governor- 
General,  Andros)  was  declared  by  the  law  courts  to 
be  legally  intact — as  it  certainly  was  physically.  In 
1776,  the  General  Court  of  Connecticut  adopted  the 


34  OUR    CONSTITUTION 

charter  as  the  State  Constitution,  and  as  such  it  re- 
mained until  the  United  States  Constitution  had  been 
in  operation  a  score  of  years. 

Few  of  Connecticut's  hardships  and  sufferings — and 
she  had  many,  as  did  all  of  the  Colonies — came  from 
within,  or  from  England;  but  from  Indian  wars  and 
boundary  disputes  with  her  neighbors.  She  was,  po- 
litically, the  most  serene  of  the  Colonies,  distracted 
less  than  any  of  the  others  by  wrangles  over  religious 
questions  or  contests  for  political  rights. 

We  have  now  seen  how  one  each  of  the  three  classes 
of  Colonies  settled  into  the  political  organization 
which  they  retained  until  the  separation  from  Great 
Britain;  of  the  other  ten,  each  falls  into  one  of  those 
classes:  Pennsylvania  and  Delaware,  Proprietary  Col- 
onies; Rhode  Island,  a  Constitutional  Colony;  and  the 
others.  Crown  Colonies.  A  few  words  about  each  will 
display  the  most  important  facts  relating  to  their  po- 
litical birth  and  growth,  and  that  is  all  that  we  need 
to  recall  to  have  in  mind  what  is  necessary  before  we 
proceed  from  the  beginnings  of  the  States  to  the  be- 
ginnings of  the  Union. 

Henry  Hudson,  an  English  navigator,  was  employed 
by  the  Dutch  East  India  Company  when,  in  1609,  he 
discovered  and  explored  the  waters  now  known  as  the 
Bays  of  New  York,  and  the  Hudson  River.  The  Dutch 
traders  who  followed  in  his  course  built  up  a  profit- 
able business  in  furs,  and  established  settlements  from 
the  lower  end  of  Manhattan  Island  to  the  head  of 
navigation  on  the  Hudson,  and  ruled  the  territory 
until,  in  1664,  the  English  captured  the  New  Nether- 
lands, as  the  Dutch  called  their  settlements.  Charles 
II  granted  to  his  brother,  the  Duke  of  York,  after- 
wards James  II,  all  the  territory  between  the  Connec- 


BEGINNINGS  OF  STATES  35 

ticut  and  the  Delaware  rivers,  and  an  English  com- 
mission attempted  to  rule  the  country  under  what 
were  known  as  the  Duke's  Laws.  In  1673,  England 
and  Holland  were  again  at  war;  the  Dutch  retook  New 
York  and  kept  it  for  a  year,  when  it  was  restored  to 
England  by  the  treaty  of  peace.  For  nearly  twenty 
years  the  Dutch-English  Colony  endured  without 
much  protest  many  changes  and  experiments  in  gov- 
ernment, but  in  1691  it  obtained  the  familiar  Colonial 
form  of  government:  a  Governor  appointed  by  the 
Crown,  a  Council  of  twelve  appointed  by  the  Gover- 
nor, nnd  an  elective  Assembly. 

That  portion  of  the  vast  grant  to  the  Duke  of  York 
south  of  the  Hudson  wns  granted  in  turn  by  the  Duke 
to  two  favorites,  and  made  an  appendage  to  New  York 
by  him  when  he  ascended  the  throne  as  James  II,  in 
1688.  The  proprietaries  failed  utterly  in  their  efforts 
to  establish  in  New  Jersey  such  a  political  body  as 
had  the  Lords  Baltimore  in  Maryland,  and  in  1702 
Iheir  rights  were  surrendered  to  Queen  Anne.  New 
Jersey  then  obtained  a  degree  of  local  government, 
but  remained  in  part  under  the  government  of  New 
York  until  it,  too,  secured  a  government  of  its  own  as 
a  Crown  Colony. 

In  1620,  a  party  of  one  hundred  and  two  persons 
landed  at  Cape  Cod  and  set  up  the  first  permanent  po- 
litical organization  in  New  England.  They  were 
known  as  Separatists:  they  wished  to  found  a  church 
separate  from  the  Established  Church  of  England,  and 
bound  themselves,  politically,  by  a  pledge  known  as 
the  Mayflower  Compact.  It  pleases  some  historians  to 
assert  that  the  settlers  there  founded  a  democratic 
republic,  but  just  how  democratic  their  republic  was 
may  be  judged  from  the  introductory  language  of  the 


36  OUR    CONSTITUTION 

Compact:  "We>  the  loyal  subjects  of  our  dread  Sov- 
ereign, King  James,  by  the  grace  of  God  King,  de- 
fender of  the  faith,  etc.,  having  undertaken  for  the 
honor  of  our  King,  to  plant  the  first  Colony  in  the 
northern  parts  of  Virginia,  do,"  etc.  This  they  sub- 
scribed to  "in  the  year  of  the  reign  of  our  Sovereign 
Lord,  King  James,"  etc.  Thus  the  Plymouth  Colony 
was  founded. 

In  1629,  a  royal  charter  incorporated  the  Governor 
and  Company  of  Massachusetts  Bay,  which  sent  out 
ships  with  many  settlers,  who  founded  Boston  and 
neighboring  towns.  These  settlers  were  Puritans,  and 
their  charter  government  was  administered  in  great 
part  by  ministers,  who  made  many  orderly  provisions 
for  the  conduct  of  churches,  towns  and  schools,  but 
enacted  a  religious  test  for  voting.  By  1634  the 
Colony  not  only  elected  its  Assembly,  but  Gov- 
ernor as  well,  and  administered  oaths  of  allegiance 
not  to  the  King,  but  to  the  government  of  the 
Colony.  Having  begun  well,  the  good  men  of  the 
Colony  devoted  so  much  of  their  great  energy  to 
fierce  and  bitter  religious  controversy  that  they  failed 
to  keep  a  strong  hold  on  their  charter,  which  was  an- 
nulled by  the  King  in  1684;  and  "with  the  charter  were 
swept  away  representative  government,  and  every 
right  and  every  political  institution  reared  during  half 
a  century  of  conflict."  But  a  new  generation,  more 
jealous  of  political  than  religious  rights,  had  grown 
to  manhood;  many  immigrants  had  arrived,  who  were 
less  enamored  of  theological  controversy  than  were 
the  earliest  Puritan  settlers,  and  out  of  these  new 
forces  developed  that  sturdy  insistence  on  political 
rights  and  burning  desire  for  freedom  which  was  to 
make  Massachusetts  the  mother  of  so  many  famous 


BEGINNINGS   OF   STATES  37 

American  patriots.  Aftef  the  loss  of  its  charter, 
Massachusetts  was  governed  for  a  time  by  a  Royal 
Commission,  whose  Governor,  Andros,  met  with  such 
determined  opposition  in  his  career  of  oppression,  that 
the  politically  rejuvenated  colonists  cut  short  his  offi- 
cial misdeeds  by  arresting  him,  in  1689,  and  sending 
him  back  to  England  a  prisoner.  Two  years  later  the 
Colony  was  granted  a  new  charter,  not  so  liberal  in 
its  grants  of  rights  as  the  original  one,  but  broader 
in  that  it  provided  that  no  religious  test  should  be  re- 
quired of  voters. 

In  1636,  Roger  Williams,  a  Welshman,  and  a  min- 
ister too  liberal  for  his  time  and  place,  was  expelled 
by  Massachusetts,  and,  with  a  few  followers,  founded 
Rhode  Island.  He  was  aided  by  Mrs.  Hutchinson, 
also  expelled  from  Massachusetts  for  her  perverse  re- 
ligious views,  who,  with  some  followers,  settled  near 
Williams's  little  company.  Williams  went  to  England 
in  1643  and  obtained  royal  permission  to  give  his 
Colony  any  kind  of  government  it  desired.  The  ene- 
mies of  his  independence  harassed  him  in  his  efforts 
for  a  time,  but  in  1654  he  succeeded  in  uniting  all  the 
town  of  his  Colony  and  was  elected  President.  Ten 
years  later  his  agent  in  England  secured  a  charter  for 
the  Governor  and  Company  of  Rhode  Island,  and  it, 
like  Connecticut,  became  a  Constitutional  Colony. 
This  charter  remained  the  Constitution  for  Rhode 
Island  until  1842. 

Wheelwright,  a  minister  banished  from  Massachu- 
setts for  his  religious  opinions,  founded  a  church  and 
town  at  Exeter,  New  Hampshire,  in  1638.  Other  exiles 
from  Massachusetts  founded  other  churches  and  towns 
at  Dover  and  Hampton,  but  they  remained  under  the 
political  domination  of  Massachusetts  until  1679,  when 


38  OUR    CONSTITUTION 

Charles  II  erected  their  settlements  into  the  separate 
Colony  of  New  Hampshire,  with  a  government  of  a 
President  and  Council  appointed  by  the  Crown,  and 
an  Assembly  chosen  by  the  people.  New  Hampshire 
was  harassed  for  three-quarters  of  a  century  by  claim- 
ants for  land  under  an  old  grant ;  she  suffered  terribly 
from  Indian  wars  and  depredations;  was  annoyed  and 
threatened  by  boundary  disputes;  was  afflicted  by 
some  of  the  worst  Governors  sent  out  from  England, 
but  with  unfailing  bravery  and  perseverance  con- 
quered where  less  hardy,  less  fearless  settlers  would 
have  failed. 

Dutch  traders  made  settlements  on  the  Delaware 
River  in  1623;  a  few  years  later  the  Swedish  West  In- 
dia Company  planted  trading  posts  and  forts  there; 
in  1641,  New  England  settlers  appeared ;  in  1663,  com- 
missioners claimed  all  the  territory  involved  in  the 
three  conflicting  settlements,  in  the  name  of  the  Duke 
of  York.  Disputes,  and  even  armed  conflicts,  make  up 
the  story  of  the  early  settlements,  until  the  appearance 
of  William  Penn,  in  1682.  The  year  before  he  had  ob- 
tained a  grant  of  territory  which  Charles  II  directed 
should  be  called  Pennsylvania.  Penn  made  such 
promises  of  just  government  and  fair  land  offers  that 
settlers  followed  him  in  great  numbers.  He  effected 
a  peaceful  settlement  of  the  conflicting  claims  of  the 
Delaware  Colony  and  gave  it  a  separate  legislature, 
while  keeping  it  under  his  governorship.  The  union  of 
Pennsylvania  and  Delaware  continued  until  1691, 
when  the  smaller  Colony  was  granted  a  complete 
separate  system  of  government.  Penn  died  in  1718, 
and  the  affairs  of  the  Colony  were  administered  by  his 
heirs  until  the  Revolution,  with  no  more  conflicts  be- 
tween the  Proprietaries  and  the  Legislature  than 


BEGINNINGS   OF   STATES  39 

seemed  necessary  to  the  healthful  growth  of  even  a 
Quaker  State. 

James  Oglethorpe,  soldier,  statesman  and  philan- 
thropist, obtained  a  grant  of  land  in  America  for  a 
novel  purpose.  As  a  member  of  Parliament  he  had 
secured  legislation  for  the  relief  of  the  condition  of 
imprisoned  debtors,  but  his  interest  in  the  unfortunate 
class  did  not  stop  there.  With  a  company  of  thirty- 
five  families,  most  of  them  recent  inmates  of  debtors' 
prisons,  he  founded  the  town  of  Savannah,  Georgia,  in 
1733.  He  dreamed  of  a  work  of  philanthropy :  it  failed, 
but  he  founded  a  State.  The  government  was  by  the 
Trustees  of  the  chartered  company,  acting,  for  ten 
years,  through  Oglethorpe.  The  Colony,  restricted  in 
manj  unwise  ways  by  laws  of  the  Trustees,  languished 
until,  in  1752,  the  charter  was  turned  over  to  the 
Crown.  Then,  under  royal  Governors  and  repre- 
sentative Assemblies,  it  made  rapid  and  excellent 
progress. 

Within  ten  years  from  the  founding  of  Virginia, 
settlers  from  that  Colony  had  gone  into  the  country 
south,  but  it  was  not  until  1629  that  Charles  I  granted 
to  Sir  Robert  Heath  the  "Province  of  Carolina."  Noth- 
ing politically  came  of  this,  nor  of  grants  in  the  same 
territory  made  by  the  Virginia  Burgesses,  in  1653. 
The  formal  political  existence  of  the  Carolinas  began 
as  a  Proprietary  Colony  under  grants  made  by  Charles 
IT  to  some  of  the  men  who  had  helped  him  regain  the 
English  throne  for  the  House  of  Stuart.  These  Pro- 
prietaries ruled  the  colonists  badly,  until,  despairing 
of  success  and  tired  of  the  turbulence  of  the  people, 
they  sold  out  their  rights  to  the  Crown  in  1731.  Three 
years  later  the  boundary  line  between  North  Carolina 
and  South  Carolina  was  determined,  and  from  that 


40  OUR   CONSTITUTION 

time  until  the  Revolution  both  Colonies  were  governed 
in  much  the  same  way  as  the  other  Crown  colonies. 

As  we  have  now  seen,  there  was  a  close  likeness  in 
the  forms  of  government  in  the  thirteen  Colonies; 
variations  between  them,  politically,  being  rather  in 
the  administration  of  the  laws  than  in  the  laws  them- 
selves. They  formed  an  uninterrupted  territory  for 
nearly  a  thousand  miles  along  the  Atlantic  Coast; 
none  had  settlements  far  into  the  interior;  all  were 
subject  to  the  danger  of  Indian  outbreaks,  all  appre- 
hensive of  encroachment  by  the  French.  These  simi- 
lar conditions  favored  a  similar  development  of  politi- 
cal ideas  and  aspirations.  The  colonists  were  learn- 
ing lessons  of  self-rule,  and  moving  in  the  direction  of 
purely  representative  government  faster  than  was  the 
mother  country.  That  was  a  great  cause  of  the  final 
separation.  For  a  century  before  the  Revolution  the 
differences  between  the  Colonies  and  England,  until 
those  final  ones,  were  caused  more  by  the  growth  of 
the  American  idea  of  representative  government  than 
by  England's  application  of  laws,  unusual  at  that  time, 
in  the  relations  of  a  Sovereign  State  with  its  Colonies. 
In  other  words,  the  strain  on  the  tie  between  England 
and  her  Colonies  was  caused  by  the  faster  forward 
movement  in  the  Colonies  of  the  representative  gov- 
ernment idea,  than  because  that  idea  in  England  stood 
still  or  retrograded. 

See  how  far  towards  independence  the  Colonies  had 
grown:  in  each  there  were  three  branches  of  govern- 
ment, executive,  legislative  and  judicial;  the  legisla- 
tures in  ten  of  the  Colonies  consisted  of  two  Houses; 
in  every  Colony  the  people  elected  the  more  numerous 
branch  of  the  Legislature  (where  there  were  two 


BEGINNINGS   OF   STATES  41 

branches),  and  in  some  also  elected  the  upper  or  less 
numerous  branch.  These  representative  legislatures 
voted  local  taxes,  made  local  laws  which  Colonial 
courts  adjudicated.  The  Colonies  were  practical 
schools  for  teaching  representative  government,  and 
their  apt  scholars  were  learning  faster  than  their 
brothers  in  the  mother  country  who  had  less  oppor- 
tunity for  study,  for,  relatively,  fewer  men  voted  for 
Members  of  Parliament  in  England  than  voted  for 
Colonial  Houses  of  Legislature  in  America.  A  people 
so  rapidly  advancing  in  knowledge  and  practice  of 
self-government  would  naturalh'  grow  less  amenable 
to  control  from  beyond  seas — less  submissive  to  inter- 
ference— in  their  political  affairs,  and  would  seek  the 
best  means  of  escape  from  control,  or  from  interfer- 
ence. That  means  was  union  among  themselves,  and 
we  shall  now  consider  how  the  means  came  to  be 
adopted. 


CHAPTER  II 

BEGINNINGS  OF  UNION 

IN  many  accounts  of  American  beginnings  of  govern- 
ment by  the  people,  the  Mayflower  Compact  is  spoken 
of  as  something  in  the  nature  of  a  fundamental  law, 
a  form  of  government,  or  constitution.  Readers  will 
find  the  text  of  the  Compact  in  the  final  chapter,  and 
they  are  urged  to  read  it,  and  all  other  texts  of 
documents  as  they  shall  be  referred  to.  Attention 
has  already  been  called  to  the  extent  of  democratic 
spirit  moving  those  who  drew  up  and  signed  that  Com- 
pact, and  beyond  that  it  seems  expedient  only  to  quote 
three  characteristic  opinions  concerning  it.  Henry 
Cabot  Lodge  says:  "They  landed  at  Cape  Cod,  and 
there  formed  a  democratic  republic  by  the  famous 
Compact  of  the  Mayflower."  John  Fiske  says:  "Such 
a  compact  is,  of  course,  too  vague  to  be  called  a  con- 
stitution. Almost  any  kind  of  civil  government  might 
have  been  formed  under  the  Mayflower  Compact." 
Alexander  Johnston  says:  "That  instrument  was 
based  upon  no  political  principle  whatever.  It  *  *  * 
had  not  a  particle  of  political  significance,  nor  was 
democracy  an  impelling  force  in  it." 

Less  than  a  score  of  years  later  a  convention  was 
held  at  Hartford,  Connecticut,  which  formed  a  consti- 
tution, a  State  and  a  union.  We  have  seen  that 
Thomas  Hooker,  with  part  of  his  Newtown  congrega- 

•43  ' 


BEGINNINGS   OF   UNION  43 

tion,  went  from  Massachusetts  to  the  valley  of  the 
Connecticut  in  1636,  and  founded  the  town  of  Hart- 
ford. That  truly  great  and  good  man  at  once  preached 
a  liberality  in  politics  which  gave  inspiration  for  the 
constitution  he  soon  helped  to  frame.  There  is  pre- 
served a  portion  of  a  sermon  delivered  by  Hooker,  only 
a  few  months  before  the  Hartford  convention,  in  which 
he  spoke  from.  Deuteronomy  i  13-15:  "Take  you  wise 
men  and  understanding,  and  known  among  your 
tribes,  and  I  will  make  them  rulers  over  you.  *  *  * 
Captains  over  thousands,"  etc.,  "and  officers  among 
your  tribes."  With  this  as  his  authority,  he  proceeded 
to  argue  that  "the  choice  of  public  magistrates  belongs 
unto  the  people,  by  God's  own  allowance;  that  the 
privilege  of  election,  which  belongs  to  the  people,  must 
not  be  exercised  according  to  their  humors,  but  accord- 
ing to  the  blessed  will  and  law  of  God;  that  they  who 
have  power  to  appoint  officers  and  magistrates,  it  is 
in  their  power,  also,  to  set  bounds  and  limitations  of  the 
power  and  place  to  which  they  call  them;  because  (1)  the 
foundation  of  authority  is  laid,  firstly,  in  the  free  consent 
of  the  people;  because  (2)  by  a  free  choice,  the  hearts  of 
the  people  will  be  more  inclined  to  the  love  of  the  per- 
sons chosen  and  more  readily  lend  obedience."  His  text, 
he  further  said,  should  "persuade  us,  as  God  hath 
given  us  liberty,  to  take  it"! 

The  pulpit  taught  politics  as  earnestly  as  it  did 
religion  in  those  days,  and  soon,  in  January,  1639,  a 
convention  of  the  men  of  the  three  towns,  Windsor, 
Wethersfield  and  Hartford,  met  in  the  latter  place  and 
adopted  the  Fundamental  Orders  of  Connecticut.  The 
purpose  of  the  convention  is  plainly  stated  in  the 
preamble  they  adopted:  "We,  the  inhabitants  of 
Windsor,  Hartford  and  Wethersfield,  dwelling  in  and 


44  OUB  CONSTITUTION 

upon  the  river  of  Connecticut  and  the  land  thereto  ad- 
joining, knowing  that  to  maintain  the  peace  and  union 
of  such  a  people  there  should  be  an  orderly  and  de- 
cent government  established,  to  order  and  dispose  of 
the  affairs  of  the  people  at  all  seasons  as  occasion 
shall  require;  do  therefore  associate  and  conjoin  our- 
selves to  be  one  Public  State  or  Commonwealth;  and 
do,  for  ourselves  and  successors,  and  such  as  shall  be 
adjoined  to  us  at  any  time  hereafter,  enter  into  com- 
bination and  confederacy  together." 

Then  followed  the  Eleven  Articles  of  "the  first  writ- 
ten constitution,  in  the  modern  sense  of  the  term,  as  a 
permanent  limitation  on  governmental  power,  known 
in  history,  and  certainly  the  first  American  consti- 
tution of  government  to  embody  the  democratic  idea." 
They  provided  for  a  Governor,  at  least  six  Magistrates, 
and  a  General  Court,  consisting  of  elected  Representa- 
tives from  each  town,  which  was  to  make  laws  for  the 
Commonwealth  and  elect  the  Governor  and  the  Magis- 
trates. 

In  this  document  was  the  life  principle  of  the  Amer- 
ican Union;  and  in  it  the  reader,  comparing  its  text 
with  that  of  the  present  Constitution  of  the  United 
States,  will  discover  how  similar  were  the  relations  of 
the  Connecticut  towns  and  the  Commonwealth  and  the 
States  of  the  Union  and  the  United  States.  A  citizen 
of  any  town  was  a  citizen  of  the  Commonwealth,  and 
no  religious  test  was  demanded  of  a  citizen  to  acquire 
the  right  to  vote. 

This  brief  review  of  the  significant  beginning  of 
American  Union  and  constitution  making  can  be  con- 
cluded with  the  notable  words  of  Bancroft:  "More 
than  two  centuries  have  elapsed  and  the  world  has 
been  made  wiser  by  the  most  various  experiences; 


BEGINNINGS   OF   UNION  45 

political  institutions  have  become  the  theme  on  which 
the  most  powerful  and  cultivated  minds  have  been 
employed,  and  so  many  constitutions  have  been 
framed  or  reformed,  stifled  or  subverted,  that  memory 
may  despair  of  a  complete  catalogue; — but  the  people 
of  Connecticut  have  found  no  reason  to  deviate  es- 
sentially from  the  form  of  government  established  by 
their  fathers.  No  jurisdiction  of  the  English  monarch 
was  recognized;  the  laws  of  honest  justice  were  the 
basis  of  their  Commonwealth;  and  therefore  its  foun- 
dations were  lasting." 

From  the  first  constitution  to  unite  and  form  an 
American  State  we  proceed  to  the  first  constitution 
to  form  a  confederation  in  America.  This  was  the  in- 
strument adopted  in  May,  1643,  by  Massachusetts, 
Providence,  Connecticut  and  New  Haven  (Providence 
and  New  Haven  were  then  separate  Colonies),  which 
created  the  United  Colonies  of  New  England.  This 
confederation  is  more  interesting  for  the  causes  which 
led  to  its  formation,  the  spirit  in  which  it  was  made, 
and  its  omission  of  any  reference  to  the  English  gov- 
ernment, than  for  its  accomplishments.  As  early  as  in 
1634,  New  England  local  government  was  threatened 
with  extinction  by  Charles  I.  Bishop  Laud,  whom  we 
have  seen  helping  Charles  in  his  schemes  for  abso- 
lutism, that  same  Laud  and  his  associates  obtained 
from  Charles  authority  to  establish  government,  dic- 
tate laws  and  regulate  the  Church  in  New  England. 
Boston  built  forts.  The  old  commercial  company, 
which  had  "financed"  the  Mayflower  venture,  sought 
to  recover  their  losses  by  gaining  title  to  all  New  Eng- 
land lands.  Connecticut  told  her  neighbors  that  they 
could  fight  better  for  their  lands  if  the  Colonies  were 
united.  Charles'  Lords  of  Council  demanded  the  re- 


46  OUR    CONSTITUTION 

turn  of  the  Massachusetts  Charter.  Massachusetts  re- 
plied, "The  common  people  will  conceive  that  his 
Majesty  hath  cut  them  off,  and  that  thereby  they  are 
freed  from  their  allegiance  and  subjection,  and  there- 
fore will  be  ready  to  confederate  themselves  under  a  new 
government  for  their  necessary  safety  and  subsistence." 
That  was  in  1638,  the  year  Hooker  was  thundering  at 
his  Hartford  congregation,  that  the  "uses"  of  his  text 
were  to  "persuade  us  that,  as  God  hath  given  us  our 
liberty,  to  take  it"! 

But  Charles  was  beginning  to  have  such  serious 
trouble  trying  to  suppress  the  Puritans  in  England 
that  he  had  no  time  to  oppress  the  Puritans  in  New 
England,  and  there  being  less  imminent  danger  of 
English  encroachment,  the  Colonies  were  deliberate 
about  forming  their  union,  until  there  arose  fears  of 
encroachments  in  other  directions.  The  Dutch  of  New 
Amsterdam  (New  York)  were  claiming  parts  of  Con- 
necticut, and  troubling  New  Haven  traders  on  the 
Delaware;  the  French  were  sometimes  threatening, 
and  the  Indians  always  a  source  of  danger.  These 
considerations,  added  to  the  fear  of  Crown  oppres- 
sions, brought  about  the  confederation.  Its  purpose  is 
set  forth  in  Article  II  of  their  Constitution:  "The  said 
United  Colonies,  for  themselves  and  their  posterities, 
do  jointly  and  severally  hereby  enter  into  a  firm  and 
perpetual  league  of  friendship  and  amity,  for  offence 
and  defence,  mutual  advice  and  succor  upon  all  just 
occasions,  both  for  preserving  and  propagating  the 
truth  and  liberties  of  the  gospel,  and  for  their  own 
mutual  safety  and  welfare."  Other  Articles  provide 
strictly  for  the  reservation  of  State  rights  to  the  mem- 
bers of  the  Union;  that  the  cost  of  wars — and  their 
spoils — be  proportioned  on  the  basis  of  male  inhabi- 


BEGINNINGS   OF   UNION  47 

tants  between  the  ages  of  sixteen  and  sixty;  for  a  con 
gress  of  the  confederation  consisting  of  two  represen- 
tatives from  each  Colony,  with  power  delegated  by  the 
General  Courts  to  ''examine,  weigh  and  determine  all 
affairs  of  our  war  and  peace,  leagues,  aids,  charges 
and  numbers  of  men  for  war,  division  of  spoils,  *  *  * 
receiving  of  more  confederates,  *  *  *  and  all  other 
things  of  like  nature  which  are  the  proper  concomi- 
tants orconsequences  of  such  a  confederation  for  amity, 
offence  and  defence,  not  intermeddling  with  the  gov- 
ernment of  any  of  the  jurisdictions  which  *  *  *  is 
preserved  entirely  to  themselves."  It  was  further 
provided  that  the  Congress  should  elect  the  President 
— note  the  titles  given  to  their  legislative  body  and 
Chief  Executive — whose  duties  were  to  be  purely  ex- 
ecutive, and  who  was  not  to  "hinder  the  performing 
or  progress  of  any  business  or  in  any  way  cast  the 
scales"  to  influence  legislation.  Thus,  very  early  in 
our  constitutional  progress  was  there  a  strictly  de- 
fined limitation  placed  upon  a  chief  executive  to  pre- 
vent his  "intermeddling"  with  the  affairs  of  the 
legislative  branch  of  the  government. 

The  Confederation  made  peace  with  the  Indians, 
executed  a  treaty  with  Nova  Scotia,  and  held  together 
until  September,  1684.  Its  great  importance  to  us  is 
in  showing  how  early  the  thoughts  of  the  colonists 
turned  toward  a  union  which  should  be  established 
without  regard  to  the  Colonies'  relations  with  the 
mother  country. 

The  English  Revolution  of  1688  was  the  cause  of  a 
meeting  of  delegates  representing  New  York,  Massa- 
chusetts, Connecticut  and  Plymouth,  in  what  some 
writers  feel  justified  in  calling  the  first  American 
Congress.  It  deserves  mention  here  because  it  was  a 


4.8  OUR   CONSTITUTION 

step  which  may  have  had  some  influence  in  creating 
a  popular  sentiment  in  favor  of  united  colonial  action 
— and  every  such  movement  was,  of  course,  a  step 
leading  to  the  Philadelphia  Convention,  which  framed 
our  Constitution.  The  English  Revolution,  as  we  have 
seen,  sent  James  II  an  exile  to  France.  Louis  XIV  of 
France  treated  James  officially  as  King  of  England, 
and  war  between  the  nations  followed.  The  French 
of  Canada,  aided  by  Indians,  invaded  the  Mohawk 
Valley,  in  New  York,  and  the  Lieutenant-Governor, 
Francis  Nicholson,  seemed  indifferent  to  the  danger. 
This  aroused  suspicion.  The  last  preceding  Governor, 
Thomas  Dongon,  a  Catholic,  had  been  charged  with 
favoring  King  Louis;  Nicholson's  delay  in  proclaim- 
ing the  new  Protestant  rulers  of  England,  William  and 
Mary,  made  it  possible  for  agitators  to  convince  the 
more  ignorant  people  of  New  York  that  they  were  to 
be  the  victims  of  a  Papist  plot.  Jacob  Leisler,  a  mer- 
chant of  New  York  City,  a  German,  although  he  had 
been  a  soldier  under  the  Dutch,  and  a  religious  and 
political  partisan  of  King  William  of  England,  headed 
an  insurrection  which,  backed  by  the  militia,  ousted 
Nicholson  and  gained  control  of  the  government. 
Leisler  called  for  delegates  to  a  war  conference,  and 
representatives  of  the  Colonies  named  met  and  agreed 
on  united  action.  They  planned  two  expeditions:  one 
by  land  against  Montreal,  one  by  water  against  Que- 
bec. So  that  an  act  pertaining  to  national  sovereignty 
was,  in  fact,  performed  by  the  short-lived  Leisler 
"Congress"  of  1690. 

William  Penn  and  other  important  men  in  the 
Colonies  considered  a  suggestion  of  the  Lords  of 
Trade  that  a  plan  for  the  consolidation  of  the  "Prov- 
inces" be  undertaken.  In  1697,  Penn  submitted  his 


BEGINNINGS   OF   UNION  49 

Plan  of  Union  in  writing,  and  it  is  historically  interest- 
ing in  that  it  is  the  first  formal  plan  for  a  union  of  all 
the  Colonies.  Penn  suggested  that  a  Congress  con- 
sisting of  two  representatives  from  each  "Province" 
meet  in  New  York  annually  in  time  of  war,  and  at 
least  once  in  two  years  in  time  of  peace,  to  be  pre- 
sided over  by  a  King's  Commissioner,  who  might  be 
the  Royal  Governor  of  New  York,  and  "shall  be  Gen- 
eral, or  Chief  Commander  of  the  several  Quotas  in 
service  against  a  common  enemy."  The  Congress  was 
to  adjust  differences  between  Colonies,  regulate  trade 
and  provide  ways  and  means  for  war.  No  action  was 
taken  on  this  proposal,  but  it  doubtless  had  its  share 
in  directing  the  slowly  forming  sentiment  which  made 
it  ever  easier  for  those  who  had  colonial  union  at 
heart  to  secure  a  hearing. 

It  was  not  until  1754  that  an  assembly  of  colonial 
representatives  met  under  conditions  and  for  a  pur- 
pose which  give  warrant  for  calling  it  an  American 
Congress.  The  threatened  war  between  England  and 
France  over  questions  of  boundaries,  which  was 
finally  to  give  Canada  to  England,  had  already  sent 
the  young  Colonel  of  Virginia  militia,  George  Wash- 
ington, with  a  protest  to  the  French,  who  were  build- 
ing forts  in  the  Alleghany  Valley,  territory  claimed 
by  Virginia  under  its  original  grant  of  1609.  Gover- 
nor William  Shirley  of  Massachusetts  was  in  England, 
acting  on  a  commission  to  adjust  the  boundary  dis- 
pute. The  French  had  made  allies  of  the  Algonquin 
Indians,  and  Washington,  Shirley — all  who  understood 
the  situation — knew  that  if  war  was  to  come,  England 
should  secure  the  friendship  of  the  Iroquois  Indians, 
generally  called  the  Six  Nations.  Shirley  saw  that 
the  boundary  commission's  labors  would  be  fruitless, 


50  OUR    CONSTITUTION 

and  induced  the  Lords  of  Trade  to  authorize  a  Colo- 
nial Congress  to  make  treaty  with  the  Six  Nations  and 
consider  a  union  of  the  Colonies  for  common  defence. 
The  Congress  met  in  Albany,  June  19,  1754,  and  was 
presided  over  by  James  De  Lancy,  Chief  Justice  of 
New  York.  No  account  of  that  part  of  the  work  of 
the  Congress  with  which  we  are  concerned  seems  so 
well  adapted  to  a  place  here  as  that  contained  in 
Franklin's  Autobiography. 

"On  the  way  to  Albany,"  writes  Dr.  Franklin,  "I 
projected  and  drew  a  plan  for  the  union  of  all  the 
colonies  under  one  government,  which  I  ventured  to 
lay  before  the  Congress.  It  then  appeared  that  sev- 
eral of  the  commissioners  had  formed  plans.  A  pre- 
vious question  was  taken  whether  a  union  should  be 
established,  which  passed  in  the  affirmative  unani- 
mously. A  committee  was  appointed,  one  member 
from  each  colony,  to  consider  the  several  plans  and 
report.  Mine  happened  to  be  preferred,  and  with  a 
few  amendments  was  accordingly  reported. 

"By  this  plan  the  general  government  was  to  be 
administered  by  a  president-general,  appointed  and 
supported  by  the  Crown,  and  a  grand  council  was  to 
be  chosen  by  the  representatives  of  the  people  of  the 
several  Colonies,  met  in  their  respective  assemblies. 
The  debate  upon  it  in  Congress  went  on  daily,  hand- 
in-hand  with  the  Indian  business.  Many  objections 
and  difficulties  were  started,  but  at  length  they  were 
all  overcome,  and  the  plan  was  unanimously  agreed 
to,  and  copies  ordered  to  be  transmitted  to  the  Board 
of  Trades  and  the  assemblies  of  the  several  provinces." 

Nothing  came  of  Franklin's  plan  for  the  reason  that 
it  was  disapproved  by  many  of  the  colonists  as  giving 
too  much  power  to  the  Crown,  and  was  rejected  by  the 


BEGINNINGS  OP   UNION  51 

British  government  as  giving  too  much  independence 
to  the  Colonies.  This  proved,  as  Franklin  observed, 
that  he  had  hit  upon  a  happy  mean. 

Our  work  now  approaches  the  period  when  the  rela- 
tions between  Great  Britain  and  the  Colonies  were 
subjected  to  a  strain  which  grew  in  tension  until  they 
were  sundered  by  the  shock  of  guns  at  Lexington  and 
Concord.  There  was  a  growing  alarm  over  what  was 
believed  in  New  England  to  be  a  purpose  by  Great 
Britain  to  establish  the  Episcopal  Church  in  the  Colo- 
nies, with  support  of  the  clergy  enforced  from  the 
taxpayers.  The  Episcopal  Church  was  established  in 
Virginia,  where  the  church  tithes  were  paid  in  to- 
bacco, as  were  nearly  all  debts  and  obligations. 
Therefore,  while  the  clergyman  suffered  in  common 
with  the  planter  when  the  price  of  tobacco  was  low, 
he  correspondingly  benefited  when  the  reverse  was 
the  case.  A  legislative  act  for  the  relief  of  the  planters 
provided  that  all  dues  and  debts  might  be  discharged 
either  in  tobacco  or  in  money,  reckoning  tobacco  at 
twopence  a  pound.  As  this  deprived  the  clergymen 
of  the  advantage  of  a  rise  in  the  market  value  of  to- 
bacco, they  protested,  and  the  King  declared  the  act 
null  and  void.  A  Virginia  court  having  pronounced 
the  law,  a  test  case  in  a  minister's  suit  for  damages 
in  having  been  paid  in  money,  not  tobacco,  went  be- 
fore a  jury,  and  the  planters'  interests  were  intrusted 
to  a  young  lawyer  named  Patrick  Henry.  In  his  argu- 
ment he  ignored  the  king-made  law  and  appealed  to 
man's  natural  rights.  He  says  in  one  part  of  his  ad- 
dress: "In  annulling  a  salutary  ordinance  at  the  re- 
quest of  a  favored  class  in  the  community,  a  King, 
from  being  the  father  of  his  people,  degenerates  into 
a  tyrant,  and  forfeits  all  rights  to  obedience.''  The 


52  OUR   CONSTITUTION 

jury  gave  one  penny  damages.  The  ministers  and 
some  Loyalist  sympathizers  endeavored  to  have  Henry 
indicted  for  treason,  but  the  voters  of  his  county,  as 
an  answer  to  this,  elected  Henry  to  the  Assembly, 
where,  as  we  shall  see,  he  was  soon  to  give  world- 
heard  utterance  to  the  sentiment  against  taxation 
without  representation. 

In  Massachusetts,  James  Otis  was  voicing  the  grow- 
ing spirit  of  independence  and  defiance  of  George  III. 
What  were  known  as  Writs  of  Assistants  were  the 
cause  of  great  irritation  and  angry  protests.  These 
were  writs  which  customs  tax  collectors  obtained  from 
the  courts  commanding  local  officers,  such  as  justices 
of  the  peace  and  sheriffs,  to  act  as  assistants  to  the 
custems  collectors  in  searching  any  vessel,  day  or 
night,  and  any  building,  for  smuggled  merchandise. 
The  writs  did  not  need  to  designate  any  ship  or  build- 
ing, nor  to  specify  what  merchandise  was  sought,  nor 
did  the  court,  before  issuing  the  writ,  require  evi- 
dence in  support  of  the  assertion  that  merchandise 
was  being  unlawfully  concealed  somewhere  by  some- 
body. A  case  under  the  execution  of  such  a  writ  hav- 
ing been  carried  before  the  Supreme  Court  of  Massa- 
chusetts Bay,  Otis  appeared  against  the  Crown.  He 
contended  that  the  spirit  of  such  a  writ  was  contrary 
to  the  spirit  of  the  British  Constitution.  To  issue 
warrants  empowering  custom  house  menials,  possibly 
from  no  other  motive  than  personal  enmity,  to  invade 
the  home  of  any  citizen,  and  not  be  held  responsible 
for  any  act  of  rudeness  or  damage,  was  a  kind  of 
power  "the  exercise  of  which  cost  one  King  of  Eng- 
land his  head,  and  another  his  throne."  Persons  in 
the  courtroom  cried,  "Treason!"  as  others  did  when 
Henry  said  the  King  was  a  tyrant.  The  scene  before 


BEGINNINGS   OF   UNION  53 

Chief  Justice  Hutchinson  and  his  associates  has  been 
described  as  the  opening  scene  of  the  American  Revo- 
lution. The  court  decided  in  favor  of  the  writ,  and 
the  colonists'  anger  grew.  The  Massachusetts  Legis- 
lature passed  a  law  designed  to  remedy  the  evil,  but 
the  Governor  rejected  the  bill;  newspapers,  pamphlets, 
and  public  speakers  denounced  the  writ,  but  their 
service  was  continued  not  only  in  Massachusetts  but 
in  other  Colonies. 

Other  wrongs  added  to  the  exasperation  and  anger 
of  the  Colonies :  That  gatherings  of  people  to  consider 
their  grievances  were  prohibited  or  broken  up;  that 
the  Crown  withheld  assent  to  necessary  and  just  laws 
passed  by  the  legislatures;  that  the  King  refused  to 
allow  local  legislatures  to  appoint  judges  "during  good 
behavior,"  and  insisted  that  they  should  be  removed 
only  by  the  King;  that  restrictions  were  placed  upon 
trade  which  required  Americans  to  take  from  Great 
Britain  alone  what  manufactures  they  needed  and  did 
not  produce,  thereby  permitting  British  merchants  to 
place  any  prices  they  chose  on  their  goods — subject 
only  to  the  limit  imposed  by  their  consciences;  that 
any  Court  of  Admiralty  had  jurisdiction  over  all  the 
Colonies,  so  that  an  importer  in  Georgia  (for  example), 
charged  with  smuggling,  might  have  to  go  to  Halifax 
for  trial,  and  even  if  he  won  his  case,  might  be  ruined 
by  costs  and  expenses,  with  no  redress  in  damages 
against  the  customs  officials. 

In  the  state  of  public  opinion  resulting  from  these 
and  other  vexatious  and  unjust  measures,  it  required 
but  a  slight  additional  cause  for  general  protest  to 
arouse  and  unite  all  the  Colonies,  and  that  cause  was 
supplied  by  Parliament  in  the  passage  of  the  famous 
Stamp  Act.  It  was  passed,  and  signed  for  George  III 


54  OUR   CONSTITUTION 

(then  insane),  March  22,  1765,  and  was  to  go  into  effect 
on  November  1st.  It  prescribed  that  stamped  paper  be 
used  for  legal  and  official  documents,  diplomas  and 
certificates;  that  stamps  be  placed  on  playing-cards, 
dice,  books  (excepting  those  used  in  the  public 
schools),  newspapers,  calendars,  pamphlets,  almanacs 
and  various  other  articles;  and  that  jury  trial  be  de- 
nied to  offenders  at  the  discretion  of  the  prosecuting 
officers.  In  the  schedule  of  stamps  the  values  ranged 
from  twopence  to  ten  pounds.  News  of  the  passage 
of  the  act  caused  an  uproar  of  protest  throughout  the 
Colonies.  In  many  towns  stamp  officers  were  hanged 
in  effigy,  copies  of  the  act  were  distributed  with  a 
death's  head  in  the  place  of  a  seal;  and  the  stamps 
themselves,  when  they  arrived,  were  destroyed  or  con- 
fiscated. When  news  of  these  events  reached  England, 
the  surprising  part  of  these  disorderly  and  informal 
acts  was  found  in  the  fact  that  the  protests  were  di- 
rected against  the  principle  involved,  not  the  amount 
of  the  tax.  This  point  was  soon  to  be  emphasised  in 
orderly  and  formal  manner. 

In  the  Virginia  Assembly,  Patrick  Henry  intro- 
duced resolutions  declaring  that  "the  taxation  of  the 
people  by  themselves,  or  by  persons  chosen  by  them- 
selves to  represent  them,  is  the  distinguishing  char- 
acteristic of  British  freedom,  without  which  the  ancient 
constitution  cannot  exist."  It  was  further  declared 
that  any  attempt  to  vest  the  power  of  taxation  in  any 
other  body  than  the  Colonial  Assembly  was  a  menace 
to  British,  no  less  than  American,  freedom;  that  the 
people  of  Virginia  were  not  bound  to  obey  any  laws 
in  disregard  of  these  fundamental  principles.  In  his 
speech  on  the  resolutions,  Henry  uttered  the  notable 
words:  "Caesar  had  his  Brutus;  Charles  the  First  had 


BEGINNINGS  OF   UNION  55 

his  Cromwell,  and  George  the  Third"  ("Treason!"  cried 
the  Speaker) — "may  profit  by  their  example.  If  thi* 
is  treason,  make  the  most  of  it."  Before  the  resolu- 
tions could  be  wholly  acted  upon  the  Governor  dis- 
missed the  Assembly,  but  the  resolutions  were  printed 
in  the  newspapers  and  received  the  enthusiastic  en- 
dorsement of  the  people. 

In  Massachusetts,  Otis  asked  the  Legislature  to 
issue  a  call  summoning  a  general  congress  to  frame 
concerted  measures  to  resist  the  act.  The  call  went 
forth  and  met  with  a  prompt  response;  the  Colonies, 
in  the  order  here  named,  electing  delegates,  who  met 
in  New  York,  October  7.  1765:  Massachusetts,  South 
Carolina,  Pennsylvania,  Rhode  Island,  Connecticut, 
Delaware,  Maryland,  New  Jersey  and  New  York.  As 
we  have  seen,  the  Virginia  Assembly  was  dismissed 
before  it  could  elect  delegates,  but  that  Colony,  like 
the  others  which  were  prevented  by  one  reason  or 
another  from  sending  representatives,  was  in  hearty 
accord  with  the  sentiments  and  acts  of  the  Stamp  Act 
Congress. 

In  the  Declaration  of  Rights  adopted  by  this  Con- 
gress the  language  is  temperate,  owing  largely,  it  is 
thought  by  some  students  of  the  proceedings,  to  the 
advice  and  influence  of  Christopher  Gadsden,  a  dele- 
gate from  South  Carolina.  In  the  course  of  debate  he 
said:  "We  should  stand  upon  the  broad  and  common 
grounds  of  those  natural  rights  which  we  all  feel  and 
know  as  men  and  descendants  of  Englishmen.  I  wish 
the  charters  may  not  ensnare  us  at  last,  by  drawing 
different  Colonies  to  act  differently  in  this  great  cause. 
There  ought  to  be  no  New  England  man,  no  New 
Yorker,  known  on  the  continent;  but  all  of  us  Ameri- 
cans." Readers  may  study  the  text  of  the  Declara- 


56  OUR   CONSTITUTION 

tions  as  they  are  printed  in  Chapter  IX,  but  special 
attention  may  here  be  called  to  the  paragraph  wherein 
the  Congress  calmly,  firmly  laid  down  the  political 
principle  from  which  the  Colonies  from  that  time 
never  receded,  that  there  could  be  no  just  taxation 
without  representation:  "That  the  only  representa- 
tives of  the  people  of  these  Colonies  are  persons  chosen 
therein  by  themselves;  and  that  no  taxes  ever  have 
been,  or  can  be  constitutionally  imposed  upon  them, 
but  by  their  respective  legislatures." 

One  party  in  the  English  Parliament  would  have 
liked  to  ignore  these  occurrences*  in  the  Colonies,  but 
a  question  had  been  raised  that  would  not  down,  and 
a  proposal  to  repeal  the  Stamp  Act  caused  a  fierce 
debate.  The  friends  of  the  Colonies,  in  Parliament, 
and  those  who  feared  that  "America,  if  she  fell,  would 
fall  like  the  strong  man  with  his  arms  around  the 
pillars  of  the  Constitution,"  were  numerous  enough 
to  repeal  the  act,  but  not  to  prevent  Parliament  from 
undoing  the  most  of  the  good  the  repeal  alone  would 
have  accomplished.  In  order,  formally,  to  record  its 
position,  Parliament  passed,  with  the  repeal,  a  Decla- 
ration Act  which  asserted  its  right  to  make  laws  bind- 
ing on  the  Colonies  "in  all  cases  whatsoever."  Par- 
liament was  informed  of  the  worthlessness  of  the  re- 
peal, coupled  with  such  a  declaration,  for  Benjamin 
Franklin,  being  then  in  England,  was  called  by  Par- 
liament and  questioned.  He  assured  his  questioners 
that  the  passage  of  the  Kepeal  Act  under  the  condi- 
tion would  not  induce  the  colonists  to  rescind  their 
protest  made  through  the  Stamp  Act  Congress;  "that 
only  force  could  induce  them  to  rescind  the  resolu- 
tions"— the  Declaration  of  Eights  and  the  Non-im- 
portation Agreement. 


BEGINNINGS   OF   UNION  57 

It  seems  that  a  majority  in  Parliament  was  resolved 
to  test  the  accuracy  of  Dr.  Franklin's  judgment  as  to 
the  American  resolve,  for  in  July,  1766,  it  passed  an 
act  imposing  duties  on  wine,  oil,  fruit  and  other  arti- 
cles, and — what  was  to  label  the  act  historically — on 
tea.  A  provision  was  added  to  the  act  which  greatly 
increased  its  irritating  effect;  the  revenue  thus  de- 
rived was  to  be  used  for  payment  of  salaries  of  colo- 
nial judges  and  other  officials  to  be  appointed  by  the 
Crown.  This  was  doubly  threatening  to  the  Colonies: 
they  were  to  be  coerced  both  in  the  matter  of  Par- 
liament-laid taxes  and  judges  dependent  upon  the 
King  for  office  and  salary. 

It  is  probable  that  in  these  actions  Parliament  did 
not  reflect  popular  opinion,  but  was  very  largely  con- 
trolled by  the  aristocracy  which,  at  that  time,  favored 
the  position  of  George  III  in  relation  to  colonial  tax 
questions.  And,  indeed,  that  attitude  of  the  King  was 
not  induced  by  enmity  against  the  colonists,  but 
against  the  agitation  in  England  for  Parliamentary 
reform.  If  the  King  assented  to  the  American  prin- 
ciple that  there  should  be  no  taxation  without  repre- 
sentation, the  principle  would  equally  grant  a  num- 
ber of  Parliamentary  reforms,  sweep  away  the  rotten 
borough  system,  and  destroy  the  chief  power  for  royal 
and  aristocratic  control  of  Parliament.  But,  of  course, 
the  colonists  gave  no  thought  to  the  cause  which  made 
the  King  urge  legislation  contrary  to  the  American 
doctrine;  they  were  naturally  and  justly  concerned 
only  with  the  effects  such  legislation  would  have  on 
their  own  political  condition. 

In  Massachusetts,  the  Legislature  adopted  a  petition 
to  the  King,  again  declaring  the  doctrine  of  no  taxa- 
tion without  representation,  and  a  circular  letter  to 


58  OUR   CONSTITUTION 

the  other  Colonies  asking  their  co-operation.  For  this, 
Governor  Bernard  dissolved  the  Legislature;  and  the 
King,  when  news  of  the  proceedings  reached  him,  with 
Bernard's  comments,  gave  expressions  of  royal  wrath, 
which  warrant  the  belief  that  thenceforth  the  admin- 
istration of  colonial  affairs  was  directed,  in  some  de- 
gree at  least,  by  the  personal  hostility  of  George  III 
against  the  Americans.  It  is  difficult,  otherwise,  to  ac- 
count for  many  acts  of  the  British  government  which 
promptly  followed.  One  of  the  King's  ministers  di- 
rected that  the  Massachusetts  Legislature  rescind  its 
circular  letter  (it  was  again  dissolved  for  refusing  to 
do  so),  and  the  other  colonial  legislatures  were  in  the 
same  extraordinary  manner  ordered  to  ignore  the  cir- 
cular. They  all  responded  to  this  unprecedented  at- 
tempt to  control  legislative  action  by  ministerial  di- 
rection, by  giving  the  circular  cordial  reception. 

A  powerful  aid  toward  gaining  respectful  hearing 
for  America  was  now  at  work:  the  Colonies  generally 
were  observing  a  non-importing  policy.  This  hurt 
business  in  London,  and  her  merchants  petitioned 
Parliament  to  repeal  the  Customs  Tax  Law.  A  com- 
promise act  was  passed:  the  tax  was  repealed  on  all 
the  articles  enumerated  in  the  bill  but  tea.  Parlia- 
ment would  not,  or  could  not,  understand  that  this  did 
not  in  any  degree  diminish  the  cause  for  resentment 
in  America;  the  obnoxious  principle  of  taxation  with- 
out representation  was  as  steadfastly  maintained  by  a 
tax  of  threepence  a  pound  on  tea,  as  by  a  shilling  a 
pound  on  a  long  schedule  of  articles.  So  the  colonists 
contended.  UI  will  never  think  of  repealing  it  until  I 
see  America  prostrate  at  my  feet,"  said  a  favorite  min- 
ister of  the  King.  "We  must  fight,"  said  a  popular 
member  of  the  Virginia  Legislature. 


BEGINNINGS   OF    UNION  59 

The  Tax  Bill  was  amended  early  in  1769.  In  March 
of  that  year  the  Virginia  Legislature,  after  again 
solemnly  declaring  the  American  doctrine,  passed  a 
motion  to  establish  a  system  of  intercolonial  commit- 
tees of  correspondence  to  promote  the  welfare  of  all 
the  Colonies  in  the  struggle  for  political  liberty.  That 
invitation  was  the  initiation  of  the  movement  which, 
as  we  shall  see,  resulted  in  the  Congress  of  1774,  and 
its  successor,  which  declared  the  United  States  of 
America  independent  of  Great  Britain.  When  the 
Virginia  Legislature  had  gone  thus  far,  it  was  dis- 
solved by  the  Governor,  but  at  once  met  elsewhere  as 
a  convention  and  adopted  non-importation  pledges, 
moved  and  read  in  the  convention  by  George  Washing- 
ton. These  pledges  were  generally  adopted  by  the 
Colonies,  but  New  York,  a  trading  community,  re- 
sumed importing  non-taxed  commodities.  This  left 
the  Colonies  disunited  in  policy,  and  consequently  the 
final  separation  from  Great  Britain  might  have  been 
longer  postponed  had  not  the  British  government 
forced  the  issue  on  the  Tea  Act. 

Tea  drinking  colonists  were  never  deprived  of  their 
admired  beverage.  What  tea  was  needed  was  smug- 
gled from  Holland — "The  road  to  Holland  is  well 
known,"  said  an  English  statesman.  This  interfered 
with  the  legitimate  trade  of  the  East  India  Company, 
and  to  remedy  that  it  was  proposed  to  remit  to  the 
company  the  tax  of  a  shilling  a  pound  it  would 
ordinarily  pay,  on  all  tea  carried  on  to  America.  As 
the  total  tax  on  the  tea  would  then  be  but  threepence 
a  pound  (the  colonial  tax),  it  would  be  cheaper  for  the 
colonists  to  import  regularly  than  smuggle;  and  thus, 
so  the  King  and  his  ministers  thought,  smuggling 
would  cease  and  the  East  India  Company's  trade  be 


60  OUR   CONSTITUTION 

benefited.  Again  the  King  and  his  ministers  strangely 
failed  to  understand  that  the  American  resistance  was 
not  to  a  tax,  but  to  taxation;  that  it  was  not  a  ques- 
tion of  pence,  but  principle.  In  the  autumn  of  1773. 
cargoes  of  tea  were  shipped  to  Boston,  New  York, 
Charleston  and  Philadelphia,  and  in  all  but  the  first- 
named  port  the  tea  was  sent  away  or  stored  and  not 
offered  for  sale.  In  Boston  neither  the  Governor  nor 
the  customs  officials  would  permit  the  tea  ships  to 
depart,  and  the  people,  directed  by  town  meetings, 
would  not  allow  it  to  be  landed.  On  the  night  before 
the  day  when  the  tea  ships  would  be  forfeited  under 
the  customs  regulations  for  failure  to  land  cargoes,  a 
half  hundred  men,  disguised  as  Indians,  protected 
from  interference  by  a  great  number  of  organized 
sympathizers,  went  to  the  ships  and  emptied  all  the 
tea  into  the  bay.  Established  government  had  been 
overridden  by  an  organized  movement  of  the  people. 
That  was  rebellion. 

When  news  of  the  "Boston  Tea  Party"  reached  Eng- 
land, the  proceedings  were  denounced  on  the  one  hand 
by  a  cabinet  minister,  Lord  North,  as  the  evil  works 
of  "a  tumultuous  and  riotous  rabble,  who  ought  not  to 
trouble  themselves  with  politics  and  government 
which  they  do  not  understand" ;  and  on  the  other  hand, 
Edmund  Burke,  a  leader  of  the  Opposition  in  the 
House  of  Commons,  urged  the  extreme  danger  of  the 
course  upon  which  the  ministry  had  entered,  and  how 
little  good  to  the  government  would  result  from  coer- 
cive laws.  When  it  was  proposed  by  friends  of  the 
Colonies  to  repeal  the  tea  duty,  Lord  North  said  that 
such  a  course  would  "stamp  us  with  timidity."  The 
Americans  must  be  humbled  first,  then  they  could  be 
reasoned  with.  The  Opposition  had  the  statesman- 


BEGINNINGS   OF   UNION  61 

ship,  but  the  Government  had  the  votes,  so  instead  of 
repealing  the  tax,  Parliament  passed  measures  de- 
signed, indeed,  to  "humble"  the  Americans,  but  the 
design  amazingly  failed.  Laws  were  passed  to  close 
the  port  of  Boston.  This  was  known  as  the  Boston 
Port  Bill,  which,  in  effect,  closed  the  port  absolutely 
to  trade  and  commerce  by  shipping,  until  the  town 
should  have  paid  for  the  tea  spilled  into  the  salt  water 
of  the  bay.  A  second  act  annulled  the  charter  of 
Massachusetts  and  gave  over  the  entire  government 
of  the  Colony  to  the  Crown,  under  €i  military  governor, 
General  Gage.  Three  other  acts  provided  that  if  any 
magistrate,  soldier  or  revenue  officer  in  Massachusetts 
should  be  indicted  for  murder  he  should  be  tried  in 
Great  Britain ;  that  troops  might  be  quartered  in  Bos- 
ton or  any  other  town  of  the  Colony;  that  the  bound- 
ary of  Canada  should  be  extended  south  to  the  Ohio 
River.  This,  known  as  the  Quebec  Act,  ignored  the 
rights  of  Massachusetts,  Connecticut,  New  York  and 
Virginia  to  territory  in  the  West,  thus  incorporated 
into  the  province  of  Quebec.  In  April,  1774,  General 
Gage  was  sent  with  troops  to  Boston  to  govern,  and 
to  carry  out  the  provisions  of  the  several  acts. 

In  Boston,  merchants  and  laborers  alike  were  de- 
prived of  means  of  earning  a  living,  for  the  blockade 
of  the  port  was  complete,  and  practically  all  commerce 
and  industry  were  stopped.  It  is  thrilling  to  read  of 
the  way  the  other  Colonies,  even  remote  settlements, 
gave  sympathy  and  material  aid  to  those  who  "suf- 
fered for  the  cause  of  all."  From  distant  and  poor 
communities  flocks  of  sheep  were  driven  overland  to 
the  blockaded  city;  the  first  wheat  grown  on  newly 
broken  land  by  frontier  settlers  was  ground  into  flour 
and  sent  to  Boston,  with  sturdy  words  of  encourage- 


63  OUR   CONSTITUTION 

ment;  the  excellent  Christopher  Gadsden  sent  gifts 
of  rice  from  the  Carolinas,  with  the  pious  hope  that 
Boston  would  never  "pay  for  an  ounce  of  the  damned 
tea."  In  Virginia,  Washington  said:  "The  crisis  has 
arrived  when  we  must  assert  our  rights,  or  submit  to 
every  imposition  that  can  be  heaped  upon  us,  till  cus- 
tom and  use  shall  make  us  tame  and  abject  slaves." 
He  added  his  wish  to  raise  one  thousand  men,  subsist 
them  at  his  own  expense,  and  march  at  their  head  for 
the  relief  of  Boston.  Washington  was  ever  an  emi- 
nently practical  man,  and,  as  he  was  not  to  be  per- 
mitted yet  awhile  to  relieve  Boston  by  arms,  he  headed 
n  subscription  list  with  a  gift  of  fifty  pounds  for  her 
relief  by  practical  means. 

Then  was  demonstrated  the  great  value  of  the  sys- 
tem of  intercolonial  committees  of  correspondence  es- 
tablished as  a  result  of  the  action  of  the  Virginians  a 
year  previous.  This  system  had  become  necessary  for 
any  concerted  measure  by  the  Colonies,  because  in 
some  the  legislatures  were  dissolved,  and  it  was  known 
in  all  that  the  Governors  would  not  permit  a  Legisla- 
ture to  remain  in  session  if  it  contemplated  measures 
for  common  resistance  to  British  authority.  The  pro- 
posal to  utilize  the  machinery  provided  by  the  com- 
mittees to  assemble  a  "general  congress"  was  first 
made  by  the  Sons  of  Liberty  in  New  York.  This  was 
promptly  endorsed  by  the  Virginia  Legislature,  sit- 
ting as  a  convention  (having  been  dissolved  as  a  legis- 
lative body  for  recommending  that  the  day  on  which 
the  Boston  Port  Bill  became  operative  should  be  ob- 
served as  a  day  of  prayer  and  fasting),  and  the  Vir- 
ginians courteously  asked  Massachusetts  to  name  the 
lime  and  place  for  holding  the  congress.  The  Legis- 
lature of  Massachusetts  was  in  session;  one  of  its 


BEGINNINGS   OF   UNION  63 

sturdy  members  locked  the  door  of  their  meeting 
place,  put  the  key  in  his  pocket,  and  the  members 
decided  to  elect  delegates  to  the  congress  to  be  held 
in  Philadelphia  in  September,  1774 — while  the  Gov- 
ernor's secretary,  outside  the  locked  door,  was  reading 
a  writ  dissolving  the  Legislature. 

Before  relating  what  was  done  by  that  congress, 
something  should  be  said  about  a  grievance  against 
British  authority  which  had  awakened  in  Virginia  a 
resentment  equal  to  that  felt  in  New  England;  a  re- 
sentment which  had  much  to  do  with  uniting  North 
and  South  in  sentiment  and  action  at  that  time.  This 
was  the  attitude  of  the  British  government  regarding 
the  slave  trade.  Says  a  modern  British  writer  who  is 
quoted  as  being  certainly  not  a  partisan  of  the  col- 
onists in  this  respect:  "Many  of  the  best  and  wisest 
men  in  the  (Virginia)  colony,  Henry  among  them,  were 
becoming  keenly  alive  to  the  social  and  economical 
evils  of  slavery,  evils  clearly  seen  and  denounced  some- 
what later  by  Washington  and  Jefferson.  In  1772  an 
address  on  this  subject  was  presented  to  the  Crown. 
The  British  government  unhappily  showed  no  desire 
to  co-operate  with  the  colonists  in  the  endeavor  to 
check  the  evil."  Jefferson's  views  were  set  forth  in 
a  paper  he  submitted  to  a  convention  of  the  members 
of  the  Virginia  Legislature  only  a  month  before  the 
Congress  of  1774.  He  wrote:  "The  abolition  of  do- 
mestic slavery  is  the  great  object  of  desire  in  those 
Colonies  where  it  was  unhappily  introduced  in  their 
infant  state.  But  previous  to  the  enfranchisement  of 
the  slaves  we  have,  it  is  necessary  to  exclude  all  fur- 
ther importation  from  Africa;  yet  our  repeated  at- 
tempts to  effect  this  by  prohibitions,  and  by  imposing 
duties  which  might  amount  to  a  prohibition,  have  been 


64  OUR  CONSTITUTION 

hitherto  defeated  by  his  majesty's  negative;  thus  pre- 
ferring the  immediate  advantage  of  a  few  British  cor- 
sairs" (thus  he  contemptuously  characterized  the  slave 
dealers)  "to  the  lasting  interests  of  the  American 
States,  and  to  the  rights  of  human  nature,  deeply 
wounded  by  this  infamous  practice."  After  consid- 
ering these  words  of  Jefferson,  the  convention  re- 
solved :  "After  the  first  day  of  November  next,  we  will 
neither  ourselves  import,  nor  purchase  any  slave  or 
slaves  imported  by  any  other  person,  either  from 
Africa,  the  West  Indies,  or  any  other  place."  This 
resolve,  in  a  stronger  form,  found  a  place  in  the  second 
of  the  resolutions  of  the  non-importing  agreement 
adopted  by  the  congress. 

Twelve  Colonies  sent  delegates  to  the  congress,  all 
but  Georgia,  which  promised,  however,  to  adopt  any 
course  of  action  which  should  be  determined  upon. 
The  political  crisis  was  debated  by  the  foremost  men 
of  the  country:  Washington,  Patrick  Henry,  Richard 
Henry  Lee,  Samuel  Adams,  John  Adams,  Jay,  Gads- 
den,  Rutledge,  Peyton  Randolph,  who  presided,  and 
others,  who  were  to  be  numbered  among  the  makers 
of  a  nation.  The  discussion  took  a  wide  range,  and 
developed  varying  views  as  to  what  would  best  pro- 
mote the  one  intense  purpose:  to  relieve  the  Colonies 
from  the  unjust  and  oppressive  laws  passed  by  Par- 
liament. If  separatists  were  there,  and  probably  some 
foresaw  that  separation  must  eventually  come,  they 
were  content  to  adopt  the  measures  approved  by  the 
majority.  These  were  another  and  longer  Declara- 
tion of  Rights,  a  petition  to  the  King,  a  memorial  to 
the  people  of  Great  Britain,  an  address  to  the  people 
of  Canada,  and  a  sweeping  pledge  for  non-importation 
and  non-consumption  of  British  goods.  Beyond  this 


BEGINNINGS  OF  UNION  65 

the  congress  was  of  great  value  in  showing  to  the 
world  that  the  Colonies  were  united;  in  making  in- 
fluential men  from  all  parts  of  the  country  personally 
acquainted  with  each  other,  to  their  better  under- 
standing of  one  another's  views;  in  helping  all  to  ac- 
quire habits  of  co-operation.  The  same  congress,  if 
not  the  same  individuals,  was  to  continue  as  a  body, 
to  carry  on  the  war,  to  declare  independence,  to  pre- 
pare the  way  for  the  Federal  Union.  Patrick  Henry 
then  said  that  that  congress  was  but  the  first  of  a 
never-ending  succession  of  congresses,  and  he  hoped 
that  "future  ages  will  quote  these  proceedings  with 
applause."  The  proceedings  were  recognized  "with 
applause"  at  once,  not  only  in  the  Colonies,  where  they 
were  formally  approved,  but  in  England,  where  Lord 
Chatham  (the  elder  Pitt)  said  that  the  papers  pre- 
pared by  the  congress  were  unsurpassed  by  any  state 
papers  ever  composed  in  any  age  or  country.  The 
congress  adjourned  in  October  to  meet  again  in  May 
"should  the  government  in  England  not  before  that 
time  accede  to  its  prayers  for  a  radical  change  in 
policy." 

But  the  government  of  England  was  indisposed  to 
change  its  policy;  it  rejected  Lord  Chatham's  views — 
which  were  shared,  however,  by  some  of  the  wisest 
British  statesmen — that  the  recent  oppressive  legis- 
lation should  be  repealed.  Chatham  even  introduced 
a  bill  embodying  his  views,  and  Burke  eloquently  con- 
tended that  the  right  to  tax  the  Colonies  should  be 
disclaimed.  But  Parliament  declared  Massachusetts 
in  a  state  of  rebellion;  all  New  England  ports  were 
closed;  the  army  in  Boston  was  increased  to  10,000 
men,  and  Gage,  denounced  as  lukewarm,  was  suc- 
ceeded by  William  Howe  as  Commander-in-Chief  of 


66  OUR  CONSTITUTION 

the  English  Army  in  America;  his  brother,  Lord  Howe, 
was  appointed  admiral  of  the  fleet  for  America,  and 
Franklin  was  denied  leave  to  present  the  case  of  the 
Continental  Congress  to  Parliament.  Franklin  re- 
turned to  America,  certain  that  an  armed  conflict  was 
inevitable. 

Before  Gage  was  superseded,  his  army  had  fought 
the  first  battle  of  the  Revolution  with  the  minutemen 
at  Lexington  and  Concord,  on  the  day,  April  19,  1775, 
that  Samuel  Adams  and  John  Hancock  departed  from 
Lexington  to  attend  the  second  session  of  Congress  at 
Philadelphia.  All  the  Colonies  were  represented  in 
this  session,  which  met  May  10.  War  had  begun  and 
war  measures  were  promptly  and  boldly  taken.  The 
first  and  greatest  of  these  was  to  create  George  Wash- 
ington Commander-in-Chief  of  the  Army  of  the  United 
States.  Washington  was  then  forty-three  years  of 
age,  and  was  commander  of  the  Virginia  militia,  in 
which  he  had  been  an  officer  since  his  youth.  This 
fact,  the  knowledge  of  his  intense  patriotism  and  de- 
votion to  public  duty,  as  well  as  a  desire  for  such  sen- 
timental advantage  as  would  come  from  engaging  the 
interest  of  all  in  an  army  then  composed  wholly  of 
New  England  men  in  charge  of  a  popular  Southerner, 
accounted  for  the  selection  of  Washington.  Congress 
could  not  know  at  that  time  that  he  was  a  military 
genius,  nor  that  events  were  so  to  affect  the  army 
during  the  war  that,  as  one  competent  critic  has  said, 
"nothing  can  be  clearer  than  that  in  any  other  hands 
than  those  of  George  Washington  the  military  result 
of  the  war  must  have  been  speedily  disastrous  to  the 
Americans."  Congress  resolved  to  issue  bills  of 
credit  for  the  cost  of  the  war,  and  pledged  the  "Con- 
federated Colonies"  to  their  redemption,  In  general, 


BEGINNINGS   OF   UNION  67 

Congress  in  this  session  exercised  only  such  powers 
as  were  necessary  to  the  conduct  of  the  war.  Farsee- 
ing  Franklin  submitted,  as  early  as  June  12,  a  draft 
of  a  constitution,  but  it  was  not  until  exactly  a  year 
later  that  action  was  taken  in  respect  to  it.  Then, 
June  12,  1776,  two  important  committees  were  ap- 
pointed by  Congress:  one  of  five  members  to  pre- 
pare a  declaration  of  independence,  one  to  "propose 
and  draft  the  form  of  a  confederation  to  be  entered 
into." 

But  Congress  was  slow  in  finally  reaching  the  con- 
clusion that  all  hope  for  a  peaceful  adjustment  of  the 
differences  was  useless.  Many  wise  men  still  believed 
that  it  would  be  best  to  retain  colonial  relations  with 
Great  Britain.  Once  more  the  King  was  petitioned, 
and  so  considerate  was  Congress  of  the  feelings  of 
George  III  that  the  last  petition  was  placed  in  the 
hands  of  Richard  Penn,  an  ardent  Loyalist,  to  be  pre- 
sented. But  the  King  would  neither  see  Penn  nor 
receive  the  petition.  He  did,  however,  hire  20,000  Hes- 
sians, the  best  infantry  in  Europe,  to  re-enforce  his 
army  in  America — and  by  that  act  silenced  almost  the 
last  voice  in  Congress  against  the  declaration.  Par- 
liament passed  an  act  closing  all  American  ports; 
authorized  the  confiscation  of  American  ships  and 
cargoes,  and  neutral  vessels  trading  with  America; 
and  directed  British  commanders  to  impress  into  the 
naval  service  (and  force  to  fight  against  their  country- 
men) the  crews  of  such  American  ships  as  they  met  on 
the  high  seas.  Congress  retorted  by  opening  all 
American  ports  to  neutrals,  and  advising  that  co- 
lonial Royalists  who  refused  to  contribute  to  the  de- 
fence, be  disarmed.  After  that  the  declaration  was 
but  the  formal  record  of  an  event  that  had  passed  into 


68  OUR   CONSTITUTION 

history:  the  United  States  were  then  warring  not  to 
achieve  independence  but  to  retain  it. 

The  Declaration  of  Independence,  written  by 
Thomas  Jefferson,  then  thirty-five  years  old,  was 
adopted  on  the  evening  of  July  4,  1776,  and  was  re- 
ceived throughout  the  States  with  enthusiastic  de- 
monstration of  loyal  approval.  "Thus,"  says  Fiske, 
"after  eleven  years  of  irritation,  and  after  such  tem- 
perate discussion  as  befitted  free  people,  the  Ameri- 
cans had  at  last  entered  upon  the  only  course  that 
could  preserve  their  self-respect,  and  guarantee  them 
in  that  great  part  which  they  had  to  play  in  the  drama 
of  civilization." 

At  an  earlier  date  Congress  had  resolved  "that  it  be 
recommended  to  the  respective  Assemblies  of  the 
United  Colonies,  where  no  government  sufficient  to  the 
exigencies  of  their  affairs  has  been  hitherto  estab- 
lished, to  adopt  such  government  as  shall,  in  the  opin- 
ion of  the  representatives  of  the  people,  best  conduce 
to  the  happiness  and  safety  of  their  constituents  in 
particular,  and  America  in  general."  All  the  Colonies 
did  as  recommended  by  Congress:  Connecticut  and 
Rhode  Island  by  continuing  their  charters  as  their 
forms  of  government;  the  others,  usually  by  conven- 
tions, framed  and  adopted  constitutions  largely  based 
on  their  colonial  charters,  but  usually  incorporating 
Bills  of  Rights  based  on  Magna  Charta  or  the  Bill  of 
Rights  enacted  by  Parliament  after  the  Revolution 
which  brought  William  and  Mary  to  the  throne.  Thus 
the  Colonies  passed  out  of  existence:  thirteen  States 
had  arisen  in  their  place,  and  constitutional  govern- 
ment was  being  learned  by  practice  in  the  political 
units  which  were  to  form  the  United  States  of 
America  under  the  Constitution.  But  national  gov- 


BEGINNINGS   OF    UNION  69 

ernment  was  first  to  be  tried  under  the  Articles  of 
Confederation. 

As  has  been  noted,  a  committee  of  Congress  was  at 
work  on  a  form  of  constitution.  The  committee  re- 
ported its  draft  in  July,  1776,  and  the  Congress  de- 
bated it  from  time  to  time  until  November,  1777,  when 
the  "Articles  of  Confederation  and  Perpetual  Union 
between  the  States"  was  agreed  upon,  and  proposed  to 
the  States  for  ratification.  These  articles  have  been 
the  subject  of  a  library  of  denunciation,  contempt  and 
even  ridicule.  A  student,  with  no  pretence  to  learning 
in  the  science  of  politics  or  the  law,  may  yet  presume 
to  suggest  that  an  instrument  of  government  which 
held  together  thirteen  new  States  through  a  dozen  or 
more  years  of  sorely  beset  existence,  during  eight  of 
which  that  instrument,  through  its  Congress,  carried 
on  to  a  successful  close  a  war  with  a  vastly  more  pow- 
erful nation,  gained  recognition  of  sovereignty  for  the 
United  States,  and  concluded  a  vitally  helpful  treaty 
with  a  powerful  ally,  had  some  measure  of  political 
virtue  adapted  to  its  time  and  circumstances.  Not 
that  even  the  layman  may  not  see  the  great  faults  of 
the  articles,  and  realize  that  as  an  instrument  of  gov- 
ernment it  was  inadequate  to  the  needs  of  the  more 
perfect  union  such  as  the  Constitution  was  to  estab- 
lish, promote  and  secure.  What  has  just  been  written 
as  to  its  possible  virtue  is  in  the  hope  ttiat  readers  will 
be  induced  to  seek,  in  studying  the  articles,  those  ele- 
ments which  gave  it  such  strength  as  it  seems  to  have 
had,  as  well  as  its  undoubted  weakness. 

The  articles  designated  the  Confederation  "The 
United  States  of  America";  retained  to  each  State 
every  power  not  "expressly  delegated"  to  Congress; 
provided  that  each  State  should  be  represented  by  not 


70  OUR   CONSTITUTION 

less  than  two  nor  more  than  seven  delegates;  that  each 
State  should  have  but  one  vote,  determined  by  the 
majority  of  its  delegates  present  when  the  vote  was 
given;  that  the  national  treasury  should  be  supplied 
by  the  States  according  to  a  property  apportionment, 
the  taxes  to  be  laid  by  the  respective  States'  legisla- 
tures; for  a  committee  consisting  of  a  member  fror.i 
each  State  to  exercise  the  powers  of  Congress  during 
recesses;  that  a  member  should  be  elected  President 
of  Congress,  but  that  no  one  could  serve  in  that  office 
more  than  one  year  in  three;  that  Congress  alone 
should  have  the  power  of  determining  on  war  and 
peace,  sending  and  receiving  ambassadors,  entering 
into  treaties  and  alliances,  appointing  army  officers 
above  regimental  rank,  and  all  officers  of  the  navy. 
Congress  was  to  consist  of  but  one  House  which  had, 
besides  legislative,  some  executive  and  judicial  pow- 
ers. The  most  serious  defects  were  the  concentration 
(largely)  of  legislative,  executive  and  judicial  powers 
in  one  body;  lack  of  coercive  powers — acting  upon  the 
States  as  political  organizations  instead  of  upon  their 
citizens  individually.  It  could  make  requisitions  for 
men  and  money  upon  the  States,  but  if  the  States  did 
not  respond  it  could  not  force  obedience. 


CHAPTER  III 

A  STRONG  GOVERNMENT    DEMANDED 

ALTHOUGH  the  War  of  the  Rebellion  did  not  end 
until  Corn  wall  is  surrendered  his  army  to  Washington 
at  Yorktown,  in  October,  1781,  and  the  treaty  with 
Great  Britain,  which  acknowledged  the  independence 
of  the  United  States,  was  not  signed  until  September, 
1783,  Great  Britain  was  defeated  in  its  military  pur- 
pose as  early  as  October,  1777,  when  the  army  of  Bur- 
goyne,  marching  south  from  Canada,  in  an  endeavor 
to  join  with  a  force  from  New  York  for  the  control 
of  the  line  of  the  Hudson,  was  met  by  a  Continental 
army  under  Gates,  and  compelled  to  surrender.  Had 
this  operation  of  the  British  succeeded,  the  United 
States  would  have  been  cut  in  two,  and  might  then 
have  been  conquered,  a  severed  part  at  a  time;  it 
failed,  and  thereafter  Great  Britain  controlled  only 
so  much  of  the  territory  of  the  rebellious  States  as  its 
army  was  encamped  upon,  for  even  in  Cornwallis's 
last  campaign  in  the  Carolinas  and  Virginia,  no  ter- 
ritory remained  subjected  after  Cornwallis  passed  on. 
But  the  war  dragged  along  because  Congress  was  pow- 
erless to  utilize  the  strength  of  the  country;  to  com- 
mand the  men  and  money  with  which  to  equip  Wash- 
ington for  an  aggressive  war.  How  he  did,  with 
matchless  genius,  defeat  a  strong,  well-organized, 
well-equipped  army,  handicapped  as  he  was  by  domes- 

71 


72  OUR    CONSTITUTION 

tic  treachery,  intrigue,  incompetence,  jealousy  and  ig- 
norance, does  not  belong  to  this  story  except  as  the 
subject  is  related  to  the  weakness  and  incompetency 
of  the  Government,  and  the  resulting  necessity  for  a 
stronger  union  under  a  better  Constitution. 

One  result  of  the  loss  of  the  British  army  under 
Burgoyne  was  that  Parliament  repealed  all  the  ob- 
noxious laws  the  Colonies  had  suffered  under,  and 
forever  renounced  its  right  to  raise  revenue  in 
America.  British  commissioners  were  appointed  to 
arrange  peace  with  Congress,  but  that  body  was  re- 
strained from  acting,  even  had  it  been  so  inclined,  for 
the  United  States  had  entered  into  a  treaty  with 
France,  agreeing,  in  consideration  of  aid  in  troops  and 
money,  to  reject  all  proposals  of  peace  by  Great 
Britain  unless  accompanied  by  acknowledgment  of 
American  independence.  Great  Britain  was  noi  yet 
ready  to  admit  so  much  as  the  existence  of  such  a 
political  body  as  the  "United  States,"  much  less  its 
independence,  and  at  that  time  there  were  signs  that 
many  Americans  were  growing  doubtful  as  to  the  ex- 
pediency of  a  centralized  government — a  United  States 
— and  thus  Congress  was  restrained  on  the  one  hand 
by  its  treaty  obligations  to  France,  on  the  other  by  a 
lack  of  strong  public  opinion  which  might  have  in- 
duced it  even  then  to  demand  recognition  of  independ- 
ence. Perhaps  this  shrinking  away  of  public  opinion 
from  the  idea  of  a  central,  united  government  was  the 
result  of  disgust  with  the  weakness  of  Congress — the 
only  embodiment  of  the  united  doctrine  the  people  had 
seen.  On  the  contrary,  historians  generally  assume 
that  the  Congress  lacked  popular  support  because  of  a 
fear  that  it  might  become  too  strong:  stronger  than 
the  States.  It  does  not  seem  to  the  present  writer 


A   STRONG  GOVERNMENT  DEMANDED  73 

that  fearsome  visions  of  absolutism  could  have  been 
aroused  by  any  known  acts  of  the  Congress.  That  un- 
happy body  was  even  yet,  in  the  years  of  Washing- 
ton's direst  extremities,  acting  under  no  instrument 
of  government,  but  exercised  such  powers  as  it  did 
by  sufferance  of  the  States.  Congress,  as  we  have 
seen,  adopted  the  Articles  of  Confederation  in  1777, 
but  these  did  not  become  operative  until  1781,  when 
Maryland,  last  State  to  do  so,  ratified  them,  when 
Green  was  rounding  up  Cornwallis's  army  in  York- 
town.  The  wisest  patriots  rested  their  hopes  on 
Washington,  rather  than  upon  the  Congress,  which 
was  no  longer  inspired  and  guided,  as  in  its  earlier 
sessions,  by  such  men  as  Jefferson,  Rutledge,  Jay  or 
Henry,  all  of  whom  were  serving  in  other  capacities. 
But  at  last  Washington,  aided  on  land  by  a  French 
army  under  Rochainbeau,  and  on  water  by  a  French 
fleet  under  Grasse  (young  Alexander  Hamilton  was 
there,  leading  in  person  desperate  assaults  on  the 
British  works),  forced  Cornwallis  to  surrender;  and 
the  destinies  of  the  country  passed  for  a  time  from 
the  soldiers  to  the  diplomats.  The  treaty,  negotiated 
for  the  Americans  by  Franklin,  Jay,  John  Adams  and 
Henry  Laurens,  conceded  about  everything  the  Ameri- 
cans hoped  for,  although  Dr.  Franklin's  modest  re- 
quest for  Canada  and  Nova  Scotia  was  abandoned 
after  it  had  served  the  good  Doctor's  purpose  of  mak- 
ing a  claim  with  the  full  intention  of  giving  it  up. 
But  favorable  as  the  treaty  was,  the  Congress  could 
not  comply  with  its  terms  concerning  payment  of 
debts  owed  to  British  creditors  by  American  mer- 
chants. The  States  became  afflicted  with  an  hysteria 
of  repudiation,  rag  money  issue  and  Tory  persecution 
legislation;  the  Congress  was  helpless;  political  quacks 


74  OUR   CONSTITUTION 

arose  and  sought  to  do  a  political  business  on  a  capi- 
tal composed  wholly  of  base  bullion.  They  attempted 
to  arouse  class  hatred,  claimed  to  have  magic  cure- 
alls  for  the  disease  of  the  body  politic,  which,  as  ever, 
largely  resolved  themselves  into  doses  of  repudiation 
of  honest  debts,  issue  of  money  without  value,  and 
laws  for  the  mulcting  of  those  citizens  whose  old- 
fashioned  ways  of  conducting  their  worldly  affairs 
had  given  them  comparative  wealth,  and  therefore 
made'  them  the  natural  objects  of  the  hatred  and  envy 
of  the  demagogues  and  their  unfortunate  dupes.  Then 
thoughtful  men  began  to  see  that  if  anarchy  was  to 
be  avoided,  power  sufficient  to  deal  with  such  dangers 
to  the  country  must  be  lodged  with  the  Congress. 

Washington,  at  the  beginning  of  these  troubles,  had 
been  among  those  who  believed  that  Congress  already 
had  powers  under  the  Articles  to  enforce  obedience 
upon  the  States,  and  through  the  States  upon  the 
citizens;  but  he  saw  that  the  right  without  the  might 
put  the  odium  of  the  effects  of  disobedience  upon  the 
States  themselves.  "Unless  the  States  will  suffer 
Congress  to  exercise  those  prerogatives  they  are  un- 
doubtedly invested  with  by  the  Constitution,  every- 
thing must  very  rapidly  tend  to  anarchy  and  con- 
fusion." Washington  wrote  this  in  June,  1783,  two  or 
three  weeks  after  he  had  formally  proclaimed  peace 
to  the  army — the  army  he  saw  go  home  unpaid;  of 
whom  he  wrote  to  Congress,  that  they  were  "veterans 
who  have  suffered  and  bled  without  a  murmur,  and 
who  had  retired  in  perfect  order  to  their  homes,  with- 
out a  settlement  of  their  accounts  or  a  farthing  of 
money  in  their  pockets."  He  also  wrote  a  circular 
letter  to  the  Governors  of  the  States,  in  which  he  said 
of  the  United  States:  "This  is  the  time  of  their  politi- 


A  STRONG   GOVERNMENT  DEMANDED  75 

cal  probation;  this  is  the  moment  when  the  eyes  of 
the  whole  world  are  turned  upon  them;  this  is  the  mo- 
ment to  establish  or  ruin  their  political  character  for- 
ever; this  is  the  favorable  moment  to  give  such  a  tone 
to  our  federal  government,  as  will  enable  it  to  answer 
the  ends  of  its  institution,  or  this  may  be  the  ill-fated 
moment  for  relaxing  the  powers  of  the  Union,  annihi- 
lating the  cement  of  the  confederation,  and  exposing 
us  to  become  the  sport  of  European  politics,  which 
may  play  one  State  against  another,  to  prevent  their 
growing  importance,  and  to  serve  their  own  interested 
purposes.  For,  according  to  the  system  of  policy  the 
States  shall  adopt  at  this  moment,  they  will  stand  or 
fall;  and  by  their  confirmation  or  lapse  it  is  yet  to 
be  decided,  whether  the  Kevolution  must  ultimately 
be  considered  as  a  blessing  or  a  curse;  a  blessing  or  a 
curse,  not  to  the  present  age  alone,  for  with  our  fate 
will  the  destiny  of  unborn  millions  be  involved."  He 
urged  these  things  as  essential  to  the  well-being  of 
the  United  States  as  an  independent  power:  "An  in- 
dissoluble union  of  the  States  under  one  federal  head; 
a  sacred  regard  to  public  justice;  the  adoption  of  a 
proper  peace  establishment;  the  prevalence  of  that 
pacific  and  friendly  disposition  among  the  people  of 
the  United  States,  which  will  induce  them  to  forget 
their  local  prejudices  and  policies;  to  make  those  mu- 
tual concessions,  which  are  requisite  to  the  general 
prosperity;  and,  in  some  instances,  to  sacrifice  their 
individual  advantages  to  the  interest  of  the  com- 
munity. 

"These,"  he  said,  "are  the  pillars  on  which  the  glori- 
ous fabric  of  our  independence  and  national  character 
must  be  supported.  Liberty  is  the  basis;  and  whoever 
would  dare  to  sap  the  foundation,  or  overturn  the 


76  OUR   CONSTITUTION 

structure,  under  whatever  specious  pretext  he  may 
attempt  it,  will  merit  the  bitterest  execration,  and  the 
severest  punishment,  which  can  be  inflicted  by  his  in- 
jured country." 

That  noble  and  pure-minded  patriot  closed  his  letter 
with  a  prayer  couched  in  language  so  lofty,  so  touch- 
ing that  nothing  he  has  written  seems  more  clearly  to 
reflect  his  soul: 

"I  now  make  it  my  earnest  prayer,  that  God  would 
have  you,  and  the  State  over  which  you  preside,  in 
His  holy  protection;  that  He  would  incline  the  hearts 
of  the  citizens  to  cultivate  a  spirit  of  subordination 
and  obedience  to  government;  to  entertain  a  brotherly 
affection  and  love  for  one  another,  for  their  fellow- 
citizens  of  the  United  States  at  large,  and  particu- 
larly for  their  brethren  who  have  served  in  the  field; 
and  finally,  that  He  would  most  graciously  be  pleased 
to  dispose  us  all  to  do  justice,  to  love  mercy,  and  to 
demean  ourselves  with  that  charity,  humility,  and 
pacific  temper  of  mind,  which  were  the  characteristics 
of  the  Divine  Author  of  our  blessed  religion,  and  with- 
out an  humble  imitation  of  whose  example  in  these 
things,  we  can  never  hope  to  be  a  happy  nation. 

The  Legislature  of  Massachusetts,  in  1785,  resolved 
that  "the  present  powers  of  the  Congress  of  the  United 
States  as  contained  in  the  Articles  of  Confederation 
are  not  fully  adequate  to  the  great  purpose  they  were 
originally  designed  to  effect."  North  Carolina  agreed 
to  grant  to  the  Congress  all  necessary  powers  if,  when 
other  States  had  done  the  same,  the  increased  powers 
should  be  expressed  in  a  new  Constitution.  After 
Washington  had  watched  the  operations  of  Congress 


A   STRONG   GOVERNMENT   DEMANDED  77 

for  a  time  from  the  retirement  of  his  home  at  Mount 
Vernon,  he,  too,  saw  that  the  Articles  did  not  give 
sufficient  power,  for  he  wrote:  "It  is  as  clear  to  me  as 
A,  B,  C,  that  an  extension  of  federal  power  would 
make  us  one  of  the  most  happy,  wealthy,  respectable 
and  powerful  nations.  Without  them  we  shall  soon 
be  everything  which  is  the  direct  reverse."  Again  he 
wrote  to  a  friend  in  Massachusetts:  "The  Confedera- 
tion seems  to  me  to  be  little  more  than  a  shadow  with- 
out the  substance,  and  Congress  a  nugatory  body,  their 
ordinances  being  little  attended  to.  To  me  it  is  a 
solecism  in  politics;  indeed,  it  is  one  of  the  most 
extraordinary  things  in  nature  that  we  should  con- 
federate as  a  nation,  and  yet  be  afraid  to  give  the  rul- 
ers of  that  nation  sufficient  powers  to  order  and  direct 
the  affairs  of  the  same."  He  wrote  on  the  subject 
earnestly  to  John  Jay,  then  Secretary  of  Foreign  Af- 
fairs, and  in  one  reply  Jay  said:  "Our  affairs  seem 
to  lead  to  a  crisis,  something  which  I  cannot  see  or 
conjecture.  I  am  uneasy  and  apprehensive,  more  so 
than  during  the  war." 

The  drift  towards  anarchy  soon  became  rapid:  in 
Massachusetts  the  demagogues,  whose  political  activi- 
ties have  been  referred  to,  incited  an  armed  rebellion, 
and  sought  by  means  of  the  musket  to  force  the  circu- 
lation of  a  worthless  paper  currency;  in  New  York, 
laws  were  passed  against  the  Tories,  whose  enforce- 
ment would  have  ruined  them;  our  ambassadors 
abroad  were  sneered  at,  and  asked  if  they  wished  to 
negotiate  treaties  for  thirteen  States  or  one  nation; 
foreign  creditors  became  clamorous  for  at  least  the 
interest  on  their  loans,  and  further  sums  were  had 
only  from  usurers.  The  British  troops  had  left  New 
York,  but  they  still  held  several  frontier  posts  and 


78  OUR   CONSTITUTION 

controlled  their  valuable  fur  trade;  but  the  humiliated 
Congress  could  not  demand  possession,  although  the 
treaty  called  for  them. 

It  was  due  to  the  initiative  of  Washington,  at  last, 
that  the  movement  started  which  resulted  in  the  Con- 
stitutional Convention.  He  had  early  seen  the  great 
help  to  commerce  which  would  result  from  extending 
inland  waterways,  and  when  peace  came  he  was  as  ac- 
tively at  work  for  the  common  good  as  when  at  the 
head  of  his  army.  Having  deeply  studied  the  subject, 
and  personally  inspected  proposed  lines  of  a  canal  to 
connect  the  Ohio  River  with  tidewater,  he  became,  in 
1785,  president  of  a  company  formed  to  carry  out  such 
a  project.  Legislation  would  be  required  to  authorize 
this  work,  and,  to  agree  upon  some  form  of  concerted 
laws,  commissioners  from  Virginia  and  Maryland  met 
at  Washington's  home.  Pennsylvania,  too,  it  was 
found,  would  have  to  be  included  in  any  compact  re- 
lating to  the  subject,  and  then  it  was  that  Washington 
suggested  that  the  three  States  should,  when  brought 
into  such  communication,  consider,  also,  other  com- 
mon affairs — duties,  trade  regulations  and  currency. 
James  Madison,  then  a  member  of  the  Legislature  of 
Virginia,  caught  the  full  meaning  of  Washington's 
idea,  and  soon  had  carried  through  the  Legislature 
resolutions  inviting  delegates  from  all  the  States  to 
meet  at  Annapolis,  Maryland,  in  September,  1786.  It 
was  a  start  in  the  right  direction,  although  delegates 
from  only  five  States  met,  four  other  States  having 
commissioned  delegates  who  for  one  reason  and  an- 
other failed  to  appear.  Alexander  Hamilton  was  a 
delegate  from  New  York,  and  he  suggested  to  his  fel- 
lows that  instead  of  formulating  any  plan  with  only 
a  minority  of  the  States  represented,  they  should  call 


A   STRONG   GOVERNMENT   DEMANDED  79' 

for  another  meeting,  and  in  the  meantime  conduct  a 
campaign  of  education.  What  seems  to  have  encour- 
aged Hamilton  to  believe  that  a  constitutional  con- 
vention might  come  of  their  efforts,  was  the  advanced 
step  already  taken  by  New  Jersey.  The  delegates  from 
that  State  bore  commissions  authorizing  them  to  con- 
fer with  other  delegates  as  to  "how  far  a  uniform  sys- 
tem in  their  commercial  regulations  and  other  im- 
portant matters  might  be  necessary  to  the  common 
interests  and  permanent  harmony  of  the  several 
States."  Here,  indeed,  was  an  official  expression  of 
Washington's  suggestion;  and  Hamilton  wrote  an  ad- 
dress in  conformity  with  it,  which  the  delegates  sent 
to  all  the  States.  This  address  urged  that  delegates 
be  sent  by  all  the  States  to  a  convention  to  meet  in 
Philadelphia,  in  May,  1787,  to  frame  such  measures 
"as  should  appear  to  them  necessary  to  render  the 
Constitution  of  the  federal  government  adequate  to 
the  exigencies  of  the  Union." 

Nothing  more  might  have  come  of  the  Philadelphia 
than  of  the  Annapolis  meeting  but  for  an  event  of  the 
winter  of  1786-7,  which  compelled  the  most  indiffer- 
ent to  realize  that  the  choice  was  now  closely  pre- 
sented— anarchy  or  a  stronger  union.  The  States  lay- 
ing claim  to  the  northwest  territory,  comprising  what 
now  constitutes  the  States  of  Ohio,  Michigan,  In- 
diana, Illinois  and  Wisconsin,  had  released  their 
claims  to  the  Congress,  and  the  sale  of  land  in  this 
great  domain  was  about  the  only  source  of  national 
revenue.  It  was  far  from  being  enough,  and  Congress 
sought  to  raise  a  revenue  from  customs  duties.  This 
failed ;  New  York  would  not  give  up  to  the  nation  her 
rich  source  of  revenue.  Congress  assessed  the  States 
for  funds.  This  failed ;  New  Jersey  would  not  pay  her 


80  OUR   CONSTITUTION 

share  while  she  was  being  bled  by  New  York's  tariff 
system.  Such  a  state  of  affairs  shocked  the  wise  and 
patriotic  into  a  sudden  sense  of  the  great  danger  to 
the  Union,  and  they  eagerly  searched  for  a  remedy; 
something  to  do,  some  way  to  turn  to  find  hope.  At 
this  critical  moment  the  Virginia  Legislature  was 
wisely  inspired  to  appoint  its  delegates  to  the  Phila- 
delphia Convention,  and  name  as  its  head — George 
Washington!  The  magic  of  that  name  was  as  potent 
as  ever;  State  after  State  followed  Virginia's  example, 
until  all  but  Ehode  Island  approved  the  movement  by 
resolution,  and  commissioned  delegates. 

In  the  Philadelphia  State  House,  the  building  in 
which  the  Declaration  of  Independence  was  written 
and  signed,  the  great  convention  met  in  May,  1787. 
A  notable  company  of  statesmen  assembled  there. 
Such  a  convention  of  great  men,  indeed,  had  never 
before,  nor  has  ever  since  assembled  in  this  country, 
if  we  make  achievement  in  public  service  our  measure 
of  greatness.  Washington,  the  foremost  soldier,  a  wise 
statesman,  a  model  citizen,  twice  to  be  President  of 
the  United  States;  Madison,  leader  in  the  Convention 
in  constructive  statesmanship,  already  renowned  as  a 
scholar  and  highest  type  of  politician,  and  to  become 
fourth  President;  Gerry,  a  signer  of  the  Declaration 
(six  signers  of  the  Declaration  of  Independence  wrote 
their  names  to  the  Constitution),  member  of  the  Con- 
tinental Congress,  and  to  be  fifth  Vice-President ;  Ham- 
ilton, orator,  master  of  the  science  of  finance,  states- 
man, and  to  be  first  Secretary  of  the  Treasury;  Rut- 
ledge,  who  had  been  a  member  of  the  Stamp  Act  Con- 
gress, and  was  to  become  Chief  Justice;  Ellsworth, 
also  to  become  Chief  Justice;  William  Johnson,  whose 
renown  as  a  scholar  and  lawyer  had  won  him  from 


A  STBONG   GOVERNMENT   DEMANDED  81 

Oxford  the  degree  of  Doctor  of  Civil  Law,  and  who 
became  president  of  Columbia  College;  John  Lang- 
don,  often  a  member  of  the  Legislature  and  once  Gov- 
ernor of  New  Hampshire;  Livingston,  eleven  times 
Governor  of  New  Jersey;  Paterson,  ten  times  Attor- 
ney-General of  New  Jersey,  author  of  one  of  the  plans 
of  government  presented  to  the  Convention,  Governor 
of  his  State,  Senator  from  it,  and  to  become  an  Asso- 
ciate Justice  of  the  Supreme  Court;  Dickinson,  lawyer, 
orator,  Congressman,  three  times  President  of  Penn- 
sylvania— but  representing  Delaware  in  the  Conven- 
tion; James  Wilson,  later  Associate  Justice  of  the  Su- 
preme Court,  who  had  studied  the  science  of  govern- 
ment in  three  great  universities — Glasgow,  Edinburgh 
and  St.  Andrews;  Caleb  Strong,  afterwards  ten  times 
Governor  of  Massachusetts,  and  others  who  had  dis- 
tinguished themselves  as  members  of  Congress,  Gov- 
ernors, at  the  bar,  or  as  great  merchants,  valuable  in 
the  Convention  when  matters  concerning  commerce 
were  considered.  But  most  interesting  and  revered  of 
aU  that  great  company  was  Benjamin  Franklin,  states- 
man, diplomat,  scientist,  sage,  philosopher,  traveller, 
writer,  wit,  linguist,  patriot;  who  had  advised  with 
rulers  and  cabinets,  been  welcomed  at  courts,  apos- 
trophized by  poets,  imitated  in  a  score  of  fashions  by 
a  whole  nation.  He  was  eighty-one  years  old  now,  but, 
as  a  fellow-member  wrote,  "possesses  an  activity  of 
mind  equal  to  a  youth  of  twenty-five  years  of  age." 
He  had  presented  a  plan  of  union  of  all  the  Colonies 
at  the  Albany  Congress,  a  third  of  a  century  earlier, 
when  many  of  his  fellow-members  in  this  Convention 
were  taking  their  first  fencing  lessons,  or  were  in  the 
nursery — or  yet  unborn.  Men  were  there  who  had 
raised  regiments  and  fought  with  them  under  Wash- 


82  OUR   CONSTITUTION 

ington  during  the  war.  From  Georgia  came 
William  Pierce,  who  was  obliged  to  return  to  his 
home  before  the  Constitution  was  ready  to  be  signed, 
but  who  sat  there  long  enough  to  receive  vivid  impres- 
sions of  his  colleagues,  which,  fortunately,  are  pre- 
served for  us  in  his  writings.  It  is  no  less  interesting 
than  instructive  to-day  to  read  the  record  of  those 
timely  impressions,  for  the  writer  seems  to  have  been 
a  close  and  impartial  observer;  and  if,  as  in  his  judg- 
ment of  Hamilton  as  an  orator,  he  reminds  us  that  an 
idol  may  be  of  clay,  we  are  consoled  by  the  fact  that 
those  men  were  not,  after  all,  idols,  but  were — Men. 
These  pictures  are  a  few  of  those  Pierce  drew : 

Alexander  Hamilton:  "To  a  clear  and  strong  judg- 
ment he  unites  the  ornaments  of  fancy,  and  whilst  he 
is  able,  convincing  and  engaging  in  his  eloquence,  the 
heart  and  head  sympathize  in  approving  him.  Yet 
there  is  something  too  feeble  in  his  voice  to  be  equal 
to  the  strains  of  oratory — it  is  my  opinion  that  he  is 
rather  a  convincing  speaker  than  a  blazing  orator. 
His  language  is  not  always  equal;  sometimes  didactic, 
like  Bolingbroke's;  at  others  light  and  tripping,  like 
Sterne's.  He  is  of  small  stature  and  lean.  His  man- 
ners are  tinctured  with  stiffness,  and  sometimes  with 
a  degree  of  vanity  that  is  highly  disagreeable." 

William  Paterson:  "Is  one  of  those  kinds  of  men 
whose  powers  break  in  upon  you  and  create  wonder 
and  astonishment — he  is  a  classic,  a  lawyer  and  an 
orator." 

Gouverneur  Morris:  "Is  one  of  those  geniuses  in 
whom  every  species  of  talents  combine  to  render  him 
conspicuous  and  flourishing  in  public  debate.  *  *  * 
He  throws  around  him  such  a  glare  that  he  charms, 


A   STRONG   GOVERNMENT   DEMANDED  83 

captivates,  and  leads  away  the  senses  of  all  who 
hear." 

James  Wilson:  "He  is  well  acquainted  with  man, 
and  understands  all  the  passions  that  influence  him. 
Government  seems  to  have  been  his  peculiar  study, 
and  all  the  political  institutions  of  the  world  he  seems 
to  know  in  detail.  No  man  is  more  clear,  copious  and 
comprehensive  than  Mr.  Wilson,  and  yet  he  is  no  great 
orator." 

James  Madison:  "He  blends  together  the  profound 
politician  with  the  scholar.  In  the  management  of 
every  great  question  he  evidently  took  the  lead  in  the 
Convention,  and  tho'  he  cannot  be  called  an  orator,  he 
is  a  most  agreeable,  eloquent  and  convincing  speaker. 
He  is  easy  and  unreserved  among  his  acquaintances, 
and  has  a  most  agreeable  style  of  conversation." 

Edmund  Kandolph:  "A  young  gentleman  in  whom 
unite  all  the  accomplishments  of  the  scholar  and 
statesman." 

Elbridge  Gerry:  "He  is  a  hesitating  and  laborious 
speaker,  without  respect  to  elegance  or  flower  of  dic- 
tion. He  cherishes  as  his  first  virtue,  a  love  for  his 
country." 

Roger  Sherman:  "No  man  has  a  better  heart  or  a 
clearer  head.  In  the  early  part  of  his  life  he  was  a 
shoemaker — but  despising  the  lowness  of  his  condi- 
tion turned  almanac  maker,  and  so  progressed  up- 
wards to  a  judge."  (Authorities  do  not  agree  with  Mr. 
Pierce  in  his  quaint  mention  of  the  means  whereby 
Sherman  progressed  to  his  judgeship.  He  seems  to 
have  been  a  surveyor  and  a  merchant  before  he  be- 
came a  judge.  He  was  afterwards  a  member  of  the 
Federal  Congress,  first  in  the  House,  and  then  in  the 
Senate.) 


84  OUR    CONSTITUTION 

It  is  of  special  interest  to  read  Mr.  Pierce's  appre- 
ciation of  Washington.  Now  if  one  should  deem  it 
possible  to  attempt  to  say  something  yet  unsaid  about 
him,  he  would  have  a  library  of  estimates  to  stimulate 
his  work;  Mr.  Pierce  wrote  without  such  stimulus,  to 
be  sure,  but  with  a  pretty  appreciation,  nevertheless. 

George  Washington :  "Like  Gustavus  Vasa,  he  may 
be  said  to  be  the  deliverer  of  his  country — like  Peter 
the  Great,  he  appears  as  the  politician  and  the  states- 
man— and  like  Cincinnatus,  he  returns  to  his  farm, 
perfectly  contented  with  being  only  a  plain  citizen, 
after  enjoying  the  highest  honors  of  the  Confederacy 
— and  now  only  seeks  for  approbation  of  his  country- 
men by  being  virtuous  and  useful." 

The  roll-call  of  delegates,  which  follows,  shows  the 
State  each  member  represents,  and  reference  to  it  will 
save  frequent  repetition  of  State  names  during  follow- 
ing chapters.  The  names  of  delegates  who  signed  the 
Constitution  and  who  also  signed  the  Declaration  of 
Independence  are  printed  in  capitals;  the  names  of 
those  who,  for  one  reason  or  another,  were  absent 
when  the  Constitution  was  signed,  are  printed  in 
italics;  the  names  of  those  who  were  present  but  re- 
fused to  sign  are  preceded  by  an  asterisk  (*). 

Baldwin,  Abraham.    (Georgia.) 
Bassett,  Richard.    (Delaware.) 
Bedford,  Gunning.    (Delaware.) 
Blair,  John.     (Virginia.) 
Blount,  William.    (North  Carolina.) 
Brealey,  David.    (New  Jersey.) 
Brown,  Jacob.    (Delaware.) 
Butler,  Pierce.    (South  Carolina.) 


A   STRONG   GOVERNMENT    DEMANDED  85 

Carroll,  Daniel.     (Maryland.) 
CLYMER,  GEORGE.    (Pennsylvania.) 

Dayton,  John  (New  Jersey.) 

Dame,  William  Richardson.    (North  Carolina.) 

Dickinson,  John.     (Delaware.) 

Ellsworth,  Oliver.     (Connecticut.) 

Pew,  William.    (Georgia.) 
Fitzsimmons,  Thomas.    (Pennsylvania.) 
FRANKLIN,    BENJAMIN.      (Pennsylvania.) 

*Gerry,  Elbridge.    (Massachusetts.) 
Gilman,  Nicholas.    (New  Hampshire:) 
Gorham,  Nathaniel.    (Massachusetts.) 

Hamilton,  Alexander.    (New  York.) 
Houston,  William  C.    (New  Jersey.) 
Houstown,  William.    (Georgia.) 

Ingersoll,  Jared.     (Pennsylvania.) 

Jenifer,  Daniel.    (Maryland.)  I 

Johnson,  William  8.    (Connecticut.) 

King,  Rufus.     (Massachusetts.) 

Langdon,  John.    (New  Hampshire.) 
Lansing,  John.    (New  York.) 
Livingston,  William.    (New  Jersey.) 

Madison,  James.    (Virginia.) 
Martin,  Alexander.    (North  Carolina.) 
Martin,  Luther.    (Maryland.) 
*  Mason,  George.    (Virginia.) 
McClurg,  James.    (Virginia.) 
McHenry,  James.     (Maryland.) 
Mercer,  John  Francis.    (Maryland.) 


86  OUR   CONSTITUTION 

Mifflin,  Thomas.    (Pennsylvania.) 
Morris,  Gouverneur.     (Pennsylvania.) 
MORRIS,  ROBERT.     (Pennsylvania.) 

Paterson,  William.    (New  Jersey.) 
Pinckney,  Charles.     (South  Carolina.) 
Pinckney,  C.  Cotesworth.     (South  Carolina.) 
Pierce,  William.     (Georgia.) 

*Randolph,  Edmund.  (Virginia.) 
READ,  GEORGE.  (Delaware.) 
Rutledge,  John.  (South  Carolina.) 

SHERMAN,  ROGER.     (Connecticut.) 
Spaight,  Richard  D.    (North  Carolina.) 
Strong,  Caleb.    (Massachusetts.) 

Washington,  George.     (Virginia.) 
.Williamson,  Hugh.     (North  Carolina.) 
WILSON,  JAMES.    (Pennsylvania.) 
Wythe,  George.    (Virginia.) 

Yates,  Robert.    (New  York.) 

The  Virginia  delegates  were  early  in  arriving  at 
Philadelphia,  and  true  to  their  hospitable  instincts 
they  met  together  at  three  o'clock  in  the  afternoon  of 
each  day  to  welcome  other  delegates  as  they  came  in, 
one  by  one,  and  in  small  companies,  on  horseback  or  in 
the  lumbering  stage  coaches  of  the  day.  "We  found 
travelling  very  expensive,"  wrote  George  Mason  of  Vir- 
ginia, "from  eight  to  nine  dollars  per  day.  In  this 
city  the  living  is  cheap.  We  are  very  well  accom- 
modated, have  a  good  room  to  ourselves,  and  are 
charged  only  twenty-five  [dollars?]  Pennsylvania  cur- 
rency per  day,  including  our  servants  and  horses,  ex- 
clusive of  club  in  liquor  and  extra  charges."  The  delay 


87 


in  the  appearance  of  delegates  in  no  manner  reflected 
a  lack  of  general  public  interest  in  the  meeting.  The 
public  was  fully  aroused,  and  the  two  great  parties 
which  were  to  develop  into  national  importance  were 
already  forming  and  agitating  their  theories  as  Fed- 
eralists and  Antifederalists.  There  was  no  lack  of 
advice  and  counsel  offered,  and  the  presses  were  kept 
busy  issuing  printed  matter  in  amazing  quantities.  It 
was  much  the  practice  in  those  days  for  any  one  who 
believed  that  he  had  something  to  say  worth  saying, 
yet  was  without  access  to  the  regular  press,  to  pub- 
lish a  pamphlet.  The  delegates  were  addressed  in 
prose  and  verse,  in  prayer  and  command,  with  argu- 
ment, satire,  and  invective.  One  minister  began  a 
poem  which  he  modestly  called  "Good  Advice  in  Bad 
Verse,"  with  this  blameless  adjuration: 

Be  then  your  counsels,  as  your  subject,  great, 

A  world  their  sphere,  and  Time's  long  reign  their  date. 

Each  party-view,  each  private  good,  disclaim, 

Each  petty  maxim,  each  colonial  aim; 

Let  all  Columbia's  weal  your  views  expand, 

A  mighty  system  rule  a  mighty  land. 

It  was  wisely  decided  to  keep  all  the  proceedings  of 
the  Convention  secret,  for  had  the  public  speakers, 
the  press,  and  the  mighty  and  articulate  army  of 
pamphleteers  been  supplied  by  each  post  with  particu- 
lars of  the  struggle  going  on  behind  the  locked  and 
guarded  doors  of  the  State  House,  it  is  painful  to  con- 
sider the  amount  and  character  of  advice  the  members 
would  have  had  to  contend  with.  The  Convention  did 
elect  a  secretary  who  kept  but  a  bare  record  of  the 
calling  of  the  sessions  to  order,  principal  motions,  and 
adjournments.  His  motes  have  been  reverently  pre- 


88  OUR    CONSTITUTION 

served  by  the  Government  and  make  part  of  the  docu- 
mentary history  of  the  Constitution  which  the  Govern- 
ment is  publishing,  but  if  it  had  not  been  for  a  volun- 
teer reporter  we  should  know  but  little  of  the  actual 
proceedings.  James  Madison,  with  a  large  perception 
of  the  historical  value  of  the  work  he  undertook,  made 
a  daily  report  not  only  of  the  actions  of  the  sessions, 
but  of  the  speeches  of  members  on  the  important  ques- 
tions debated,  and  each  evening  elaborated  his  abbre- 
viated notes,  and  had  the  help  of  members  in  securing 
accuracy  in  his  summaries  of  their  speeches.  It  is 
interesting  to  read  what  Madison  himself  has  written 
about  this  immeasurable  service  he  there  performed. 
In  an  unfinished  Introduction  to  his  notes  he  says: 
"The  curiosity  I  had  felt  during  my  researches  into 
the  history  of  the  most  distinguished  confederacies, 
particularly  those  of  antiquity,  and  the  deficiency  I 
found  in  the  means  of  satisfying  it,  more  especially  in 
what  related  to  the  process,  the  principles — the  rea- 
sons and  the  anticipations  which  prevailed  in  the  for- 
mation of  them — determined  me  to  preserve,  so  far  as 
I  could,  an  exact  account  of  what  might  pass  in  the 
convention  while  executing  its  trust,  with  the  magni- 
tude of  which  I  was  duly  impressed,  as  I  was  with 
the  gratification  promised  to  future  curiosity  by  an 
authentic  exhibition  of  the  objects,  the  opinions,  the 
reasonings  from  which  the  new  system  of  government 
was  to  receive  its  peculiar  structure  and  organization. 
Nor  was  I  unaware  of  the  value  of  such  contribution 
to  the  fund  of  materials  for  the  history  of  a  constitu- 
tion on  which  would  be  staked  the  happiness  of  a 
young  people,  great  even  in  its  infancy,  and  possibly 
the  cause  of  liberty  throughout  the  world.  In  pur- 
suance of  the  task  I  had  assumed  I  chose  a  seat  in 

f 


A   STRONG   GOVERNMENT   DEMANDED  89 

front  of  the  presiding  member,  with  the  other  mem- 
bers on  my  right  and  left  hand.  In  this  favorable  po- 
sition for  hearing  all  that  passed,  I  noted  in  terms 
legible,  and  in  abbreviations  intelligible  to  myself, 
what  was  read  from  the  chair  or  spoken  by  the  mem- 
bers; and  losing  not  a  moment  unnecessarily  between 
the  adjournment  and  reassembling  of  the  Convention, 
I  was  enabled  to  write  out  my  daily  notes  during  the 
session,  or  within  a  few  days  of  its  close." 

Charles  Pinckney  also  preserved  full  notes  of  the 
proceedings  (which,  like  Madison's,  were  finally  de- 
posited with  the  Department  of  State),  but  in  a  letter 
written  in  1818  to  John  Quincy  Adams,  then  Secre- 
tary of  State,  he  testifies  to  the  greater  detail  of  Madi- 
son's notes.  He  wrote:  "The  veil  of  secrecy  from  the 
proceedings  of  the  Convention  being  removed  by  Con- 
gress, and  but  very  few  of  the  members  alive,  would 
make  disclosure  now  of  the  scenes  there  acted  less 
improper  than  before.  With  the  aid  of  the  journal 
and  the  numerous  notes  and  memorandums  I  have 
preserved,  it  would  be  in  my  power  to  give  a  view 
of  the  almost  insuperable  difficulties  the  Convention 
had  to  encounter,  and  of  the  conflicting  opinions  of 
the  members,  and  I  believe  I  should  have  attempted 
it  had  I  not  always  understood  Mr.  Madison  intended 
it — he  alone,  I  believed,  possessed  and  retained  more 
numerous  and  particular  notes  of  their  proceedings 
than  myself." 

As  we  have  seen,  the  Virginia  delegates  were  early 
on  the  ground,  but  others  were  delayed  so  long  that 
it  was  not  until  Friday,  the  25th,  that  nine  of 
the  States  were  represented  and  the  Convention  was 
organized.  Even  then  no  delegates  had  arrived  from 
New  Hampshire,  Connecticut  or  Maryland,  and  as  to 


90  OUB   CONSTITUTION 

the  thirteenth  State,  Khode  Island,  it  never  sent  dele- 
gates. 

It  had  been  intended,  as  a  great  mark  of  respect  to 
Washington,  that  the  only  other  delegate  who  might 
have  been  considered  as  President  of  the  Convention, 
Dr.  Benjamin  Franklin,  should  place  him  in  nomina- 
tion. But  the  day  was  rainy  and  the  aged  statesman 
did  not  attend  the  session  on  that  first  day  of  busi- 
ness, so  Robert  Morris,  another  Pennsylvania  dele- 
gate, speaking  for  Dr.  Franklin,  placed  Washington 
in  nomination.  The  nomination  was  seconded  by  John 
Rutledge,  of  South  Carolina,  who,  with  a  delicacy 
which  is  not  always  observed  upon  such  occasions, 
remarked  that  the  presence  of  General  Washington 
forbade  many  remarks  which  otherwise  it  would  be 
pleasant  to  make,  beyond  expressing  his  confidence 
that  the  choice  would  be  unanimous.  It  was,  and  the 
mover  and  seconder  of  the  nomination  escorted  Wash- 
ington to  the  chair.  Modest,  as  he  ever  was,  he 
thanked  the  Convention  for  the  honor  bestowed  upon 
him,  and,  as  Madison  records,  "reminded  them  of  the 
novelty  of  the  scene  of  business  in  which  he  was  to 
act,  lamented  his  lack  of  better  qualifications,  and 
claimed  the  indulgence  of  the  House  towards  the  in- 
voluntary errors  which  his  inexperience  might  occa- 
sion." Then  one  William  Jackson  was  elected  secre- 
tary of  the  Convention.  The  good  gentleman,  who 
seems  to  have  been  a  Major  of  sorts,  had  nothing  to 
do  but  make  a  record  of  the  proceedings,  and  had  he 
done  so  would  be  the  best  known  historical  authority 
of  his  age.  However,  Madison,  with  a  great  deal  else 
to  do,  found  time  to  make  a  highly  interesting  run- 
ning story  of  the  events,  day  by  day,  and  to  him  we 
must  turn  for  this  part  of  our  account. 


A   STRONG   GOVERNMENT   DEMANDED  91 

The  next  meeting  of  the  Convention  was  on  Mon- 
day, the  28th,  when  a  report  was  brought  in  by  a 
committee  on  rules.  In  a  body  composed  so  largely 
of  men  familiar  with  parliamentary  proceedings,  the 
matter  of  rules  was  quickly  disposed  of,  and  is  men- 
tioned here  in  order  to  quote  but  one  rule,  which  shows 
the  respect  the  members  were  always  formally  to  pay 
to  Washington.  The  rule  reads:  "When  the  House 
shall  adjourn  every  member  shall  stand  in  his  place 
until  the  President  pass  him."  The  main  business  of 
the  Convention  was  not  begun  until  the  next  day,  but 
on  that  Monday  a  letter  was  received  from  "several 
gentlemen  of  Rhode  Island,  addressed  to  the  honor- 
able, the  Chairman  of  the  General  Convention,  signed 
in  behalf  of  the  Merchants,  Tradesmen,  etc.,"  which 
explained  why  Rhode  Island  was  not  represented  in 
the  Convention.  As  little  Rhode  Island  has  been  much 
censured  for  its  neglect  to  join  with  the  other  States 
in  this  respect  a  portion  of  the  letter  is  here  quoted 
that  her  position  may  be  understood: 

"The  failure  of  this  State  was  owing  to  the  non- 
concurrence  of  the  upper  House  of  Assembly  with  a 
vote  passed  in  the  lower  House,  for  appointing  dele- 
gates to  attend  the  said  convention.  *  *  *  As  the 
object  of  this  letter  is  chiefly  to  prevent  any  impres- 
sions unfavorable  to  the  commercial  interests  of  this 
State,  from  taking  place  in  our  sister  States  from  the 
circumstance  of  our  being  unrepresented  in  the  pres- 
ent National  Convention,  we  shall  not  presume  to 
enter  into  any  detail  of  the  objects  we  hope  your  de- 
liberations will  embrace  and  provide  for,  being  con- 
vinced that  they  will  be  such  as  have  a  tendency  to 
strengthen  the  Union,  promote  commerce,  increase 


92  OUR    CONSTITUTION 

the   power   and  establish   the    credit    of  the   United 
States." 

A  private  letter  received  by  the  Convention  from  a 
citizen  of  Rhode  Island  went  frankly  into  the  question 
of  the  standing  of  the  House  which  blocked  the  effort 
to  send  delegates  from  Rhode  Island.  Said  the 
writer:  "Permit  me,  sir,  to  observe  that  the  measures 
of  our  present  Legislature  do  not  exhibit  the  real 
character  of  our  State.  They  are  equally  abhorred 
and  reprobated  by  gentlemen  of  the  learned  profes- 
sions, by  the  whole  mercantile  body,  and  by  most  of 
the  respectable  farmers  and  mechanics.  The  majority 
of  the  administration  is  composed  of  a  licentious  num- 
ber of  men,  destitute  of  education,  and  many  of  them 
void  of  principle.  From  anarchy  and  confusion  they 
derive  their  temporary  consequence,  and  this  they  en- 
deavor to  prolong  by  debauching  the  mind  of  the 
common  people.  *  *  *  It  is  fortunate,  however, 
that  the  wealth  and  resources  of  this  State  are  chiefly 
in  the  possession  of  the  well  affected,  and  that  they 
are  entirely  devoted  to  the  public  good." 

These  loyal  assurances  from  Rhode  Island  were  wel- 
come to  the  delegates,  and  produced  a  good  effect  upon 
their  minds,  so  they  cheerfully  concluded  their  or- 
ganization by  the  election  of  a  messenger  and  a  door- 
keepep,  and  then  adjourned  to  the  next  day,  when 
was  to  begin  the  actual  work  of  constitution  making. 
The  assembly  met  on  the  momentous  day  not  as  a 
Convention,  but  as  a  Committee  of  the  Whole,  as  it 
did  on  many  following  days,  with  Mr.  Gorham  in  the 
chair,  and  General  Washington  sitting  as  a  member 
only,  speaking  seldom,  but  paying  ever  the  closest 
attention  to  the  notable  debates,  and  now  and  then 


A   STRONG   GOVERNMENT    DEMANDED  93 

adding  a  word  of  advice,  and  once  raising  his  voice 
at  a  crisis  when  the  very  existence  of  the  Convention 
was  threatened,  and  restoring  calmness  as  perhaps  no 
one  else  there  could  have  done.  It  was  on  this  day, 
Tuesday,  May  29th,  that  Edmund  Randolph  intro- 
duced a  set  of  resolutions  which  became  the  accepted 
raw  material  out  of  which  was  hammered  the  Consti- 
tution itself.  Resolutions  intended  for  the  same  pur- 
pose were  afterwards  introduced  by  Hamilton,  Pater- 
son  and  Charles  Pinckney,  but  they  have  not  the  his- 
torical importance  of  the  Randolph  resolutions,  as 
they  were  never  used  as  basis  for  the  constructive 
work  of  the  Convention.  It  seems  to  be  generally  ac- 
cepted by  writers  on  the  subject  that  these  Randolph 
resolutions  were  largely  written  by  Madison,  but  Madi- 
son himself  gives  an  account  of  their  preparation 
which  does  not  justify  this  assumption.  It  is  true  that 
Mr.  Madison  wrote  to  Randolph,  shortly  before  the 
meeting  of  the  Convention,  a  letter  giving  "a  sketch 
on  paper,  the  earliest,  perhaps,  of  a  constitutional  gov- 
ernment for  the  Union  organized  into  the  regular 
departments,  with  physical  means  operating  on  indi- 
viduals, to  be  sanctioned  by  the  people  of  the  States, 
acting  in  their  original  and  sovereign  character."  But, 
adds  Madison,  "on  the  arrival  of  the  Virginia  deputies 
at  Philadelphia,  it  occurred  to  them  that  from  the 
early  and  prominent  part  taken  by  that  State  in  bring- 
ing about  the  Convention,  some  initiative  step  might 
be  expected  from  them.  The  resoluti9ns  introduced 
by  Governor  Randolph  were  the  result  of  a  consulta- 
tion on  the  subject;  with  an  understanding  that  they 
left  all  the  deputies  entirely  open  to  the  lights  of  dis- 
cussion, and  free  to  concur  in  any  alterations  which 
their  reflections  and  judgments  might  approve.  The 


94  OUR  CONSTITUTION 

resolutions,  as  the  journals  shew,  became  the  basis  on 
which  the  proceedings  of  the  Convention  commenced, 
and  to  the  developments,  variations  and  modifications 
of  which  the  plans  of  government  proposed  by  the  Con- 
vention may  be  traced." 

The  Randolph  resolutions  proposed  a  national  legis- 
lature composed  of  two  houses,  the  more  numerous 
branch  to  be  elected  by  the  people,  the  less  numerous 
by  the  first  branch;  that  the  representation  in  the 
legislature  should  be  proportioned  on  the  States'  con- 
tributions to  the  national  treasury,  or  on  the  number 
of  free  inhabitants;  that  the  chief  executive  should  be 
chosen  by  the  national  legislature,  and  be  advised  "by 
a  convenient  number  of  the  national  judiciary"  in  the 
exercise  of  veto  power  on  legislation;  that  a  supreme 
and  inferior  national  judiciary  be  chosen  by  the  na- 
tional legislature;  that  provision  should  be  made  for 
the  admission  of  new  States  to  which  a  republican 
form  of  government  should  be  guaranteed;  that  pro- 
vision should  be  made  for  the  amendment  of  the  Con- 
stitution. 

Much  of  Randolph's  speech  in  introducing  his  reso- 
lutions, as  reported  by  Madison,  is  worth  repeating 
here,  for  it  gives  a  vivid  impression  of  the  high  stand- 
ard of  statesmanship  which  inspired  the  speaker  and 
many  of  his  colleagues,  their  clear  understanding  of 
the  weakness  of  the  government  under  the  Articles  of 
Confederation,  and  of  what  had  to  be  done  by  the  Con- 
vention to  establish  a  strong,  efficient  national  gov- 
ernment. After  his  introductory  remarks,  says  Madi- 
son, "he  then  commented  on  the  difficulty  of  the  crisis, 
find  the  necessity  of  preventing  the  fulfilment  of  the 
prophecies  of  the  American  downfall. 

"He  observed  that  in  revising  the  federal  system  we 


A   STRONG   GOVERNMENT   DEMANDED  95 

ought  to  enquire:  1,  into  the  properties  which  such  a 
government  ought  to  possess;  2,  the  defects  of  the  con- 
federation; 3,  the  danger  of  our  situation,  and,  4,  the 
remedy. 

'The  character  of  such  a  government  ought  to  se- 
cure: 1,  against  foreign  invasion;  2,  against  dissen- 
tions  between  members  of  the  Union,  or  seditions  in 
particular  States;  3,  to  procure  to  the  several  States 
various  blessings,  of  which  an  isolated  situation  was 
incapable;  4,  to  be  able  to  defend  itself  against  en- 
croachment, and,  5,  to  be  paramount  to  the  State 
constitutions. 

"In  speaking  of  the  defects  of  the  confederation,  he 
professed  a  high  respect  for  its  authors,  and  consid- 
ered them  as  having  done  all  that  patriots  could  do, 
in  the  then  infancy  of  the  science  of  constitutions,  and 
of  confederacies — when  the  inefficiencies  of  requisi- 
tions was  unknown — no  commercial  discord  had  arisen 
among  any  States — foreign  debts  had  not  become  ur- 
gent— the  havoc  of  paper  money  had  not  been  fore- 
seen— treaties  had  not  been  violated — and  perhaps 
nothing  better  could  be  obtained  from  the  jealousy  of 
the  States  with  regard  to  their  sovereignty. 

"He  then  proceeded  to  enumerate  the  defects:  that 
the  confederation  produced  no  security  against  foreign 
invasion;  Congress  not  being  permitted  to  prevent  a 
war,  prevent  breaches  of  treaties  or  of  the  law  of 
nations,  nor  to  support  it  by  their  own  authority.  Of 
this  he  cited  many  examples;  most  of  which  tended 
to  shew  that  they  could  not  cause  infractions  of  treat- 
ies or  of  the  law  of  nations  to  be  punished;  that  the 
particular  States  might,  by  their  conduct,  provoke  war 
without  control;  and  that  neither  militia  nor  draughts 
being  fit  for  defense  on  such  occasions,  enlistments 


96  OUR   CONSTITUTION 

only  could  be  successful,  and  these  could  not  be  exe- 
cuted without  money. 

"That  the  federal  government  could  not  check  the 
quarrels  between  States,  or  a  rebellion  in  any,  not  hav- 
ing constitutional  power,  nor  means  to  interpose  ac- 
cording to  the  exigency; 

"That  there  were  many  advantages  that  the  United 
States  might  acquire  which  were  not  attainable  under 
the  confederation — such  as  productive  imposts — 
counteraction  of  the  commercial  regulations  of  other 
nations — pushing  of  commerce. 

"That  the  federal  government  could  not  defend  itself 
against  the  encroachment  of  the  States; 

"That  it  was  not  even  paramount  to  the  State  con- 
stitutions. 

"He  next  reviewed  the  danger  of  our  situation,  ap- 
pealed to  the  sense  of  the  best  friends  of  the  United 
States — the  prospect  of  anarchy  from  the  laxity  of 
government  everywhere. 

"He  then  proceeded  to  the  remedy,  the  basis  of 
which  he  said  must  be  the  republican  principle." 

Before  following  through  the  Convention  the  con- 
sideration of  the  fundamental  principles  of  the  reso- 
lutions, and  their  variation  into  many  forms  before  they 
reached  the  final  form  in  which  they  were  lodged  in 
the  Constitution,  it  will  be  interesting  to  delay  a  little 
while  watching  the  Convention  at  work. 

On  the  30th  of  May  the  Committee  of  the  Whole  lost 
no  time  in  further  preliminaries,  but  settled  down 
quickly  to  practical  constructive  work.  It  is  interest- 
ing to  note  that  the  great  idea  of  a  government  of 
three  branches,  co-ordinate  but  independent,  was  the 
first  one  given  consideration  by  the  members.  It  was 


A   STRONG   GOVERNMENT    DEMANDED  97 

Mr.  Randolph  himself  who,  early  in  the  day's  session, 
moved  the  postponement  of  his  first  proposition  in 
order  to  consider  three  others,  the  third  of  which  read : 
"That  a  national  government  ought  to  be  established, 
consisting  of  a  supreme  Legislative,  Executive  and 
Judiciary."  And  this  was  the  first  thing  which  was 
debated,  the  other  two  being  postponed,  and  at  once 
there  was  observable  the  line  which  finally  divided  the 
voters  of  the  country  into  Federalists,  and  States' 
Right  Antifederalists.  Mr.  Charles  Pinckney  wanted 
to  know  if  Randolph  "meant  to  abolish  the  State 
government  altogether?"  C.  C.  Pinckney  doubted 
whether  the  act  of  Congress  recommending  the  Con- 
vention, or  the  commissions  of  the  deputies  to  it,  could 
even  so  much  as  authorize  them  to  discuss  a  system 
so  different  from  the  Confederation,  and  Mr.  Gerry — 
who  was  an  obstructionist  throughout  and  finally  re- 
fused to  sign  the  Constitution — was  equally  startled 
at  the  proposal  of  the  Virginian  so  radically  to  change 
the  Articles  of  Confederation.  Then  Gouverneur  Mor- 
ris arose  and  made  the  great  issue  plain.  He  said 
that  the  Confederation  was  a  mere  compact,  resting 
on  the  good  faith  of  the  federated  States;  that  there 
must  be  one  supreme  power,  and  one  only — a  national 
government.  What  differences  there  were  to  be  over- 
come is  seen  in  the  fact  that  even  this  proposition 
was  debated  all  day,  and  was  carried  in  the  end 
against  the  vote  of  Connecticut,  and  with  New  York 
divided,  Hamilton,  of  course,  voting  in  favor,  and 
Yates  against  it  (Lansing  absent);  for  the  purpose  of 
Yates  and  Lansing  in  the  Convention  was  to  defeat, 
if  possible,  the  efforts  of  Hamilton  in  favor  of  a  strong 
national  government.  Just  before  the  day's  adjourn- 
ment, the  work  for  the  following  day  was  cut  out  by 


98  OUR   CONSTITUTION 

resolving  to  consider  the  question  of  the  representa- 
tion of  the  States  in  the  national  legislature.  It  was 
thought,  probably,  that  only  a  day's  work  was  thus 
provided  for,  but  instead,  weeks  were  consumed  in 
discussing  some  form  of  the  troublesome  question.  It 
evoked  the  expression  of  some  sentiments  which  sound 
strangely  in  these  days  of  manhood  suffrage.  In  the 
debate  on  the  question  of  how  the  members  of  the 
first  branch  of  Congress  should  be  elected,  whether  by 
the  people  or  by  State  legislatures,  Gerry  said:  "The 
evils  we  experience  flow  from  the  excess  of  democracy. 
The  people  do  not  want  (lack)  virtue,  but  are  the  dupes 
of  pretended  patriots."  We  had,  he  said,  been  too  re- 
publican ;  he  had  been  taught  the  danger  of  the  level- 
ing spirit.  And  so  Sherman  said:  "The  people  imme- 
diately should  have  as  little  to  do  as  possible  with  gov- 
ernment. They  want  (lack)  information,  and  are  con- 
stantly liable  to  be  misled." 

But  the  spirit  of  democracy  was  in  the  Convention 
in  a  safe  proportion.  Mason  promptly  replied  to 
Gerry,  arguing  strongly  for  the  election  of  the  first 
branch  (the  House  of  Representatives  was  generally 
spoken  of  as  the  "first"  branch,  the  Senate  as  the 
"second"  branch)  by  the  people  direct.  It  was,  he  said, 
to  be  the  grand  depository  of  the  democratic  principle 
of  the  Government.  In  that  same  speech  Mason  said 
something  which  has  since  been  expressed  in  the 
homely  phrase  that  in  America,  with  its  equal  oppor- 
tunities, it  is  three  generations  "from  shirt  sleeves  to 
shirt  sleeves."  Said  Mason:  "I  have  often  wondered 
at  the  indifference  of  the  superior  classes  of  society  to 
this  dictate  of  humanity  and  policy,  considering  that 
however  affluent  their  circumstances,  or  elevated  their 
situation  may  be,  the  course  of  a  few  years  not  only 


A   STRONG   GOVERNMENT    DEMANDED  99 

may,  but  certainly  will  distribute  their  posterity 
through  the  lower  classes  of  society.  Every  selfish 
motive,  therefore,  every  family  attachment,  ought  to 
recommend  such  a  system  of  policy  as  will  provide  no 
less  carefully  for  the  rights  and  happiness  of  the  low- 
est as  well  as  the  highest  orders  of  society." 

Another  sturdy  opponent  to  anything  like  a  prop- 
erty qualification  to  the  right  to  vote  was  Franklin. 
Much  later  in  the  Convention  he  "expressed  his  dislike 
to  everything  that  tended  to  debase  the  spirit  of  the 
common  people.  If  honesty  was  often  the  companion 
of  wealth,  and  if  poverty  was  exposed  to  peculiar 
temptation,  it  was  not  less  true  that  the  possession  of 
property  increased  the  desire  for  more  property.  Some 
of  the  greatest  rogues  he  was  ever  acquainted  with 
were  the  richest  rogues.  We  should  remember  the 
character  which  the  Scriptures  require  in  rulers,  that 
they  should  be  men  hating  covetousness.  This  Con- 
stitution will  be  much  read  and  attended  to  in  Europe, 
and  if  it  should  betray  a  great  partiality  to  the  rich, 
will  not  only  hurt  us  in  the  esteem  of  the  most  liberal 
and  enlightened  men  there,  but  discourage  the  com- 
mon people  from  removing  to  this  country." 

As  we  shall  see,  the  greatest  struggle  in  the  Con- 
vention was  over  the  question  whether  the  representa- 
tion in  the  national  legislature  should  be  equal  as  be- 
tween the  several  States,  or  proportional,  and  that  the 
so-called  Connecticut  compromise  that  the  States 
should  be  equally  represented  in  the  Senate,  and  pro- 
portionally represented  in  the  House  of  Representa- 
tives, was  the  key  to  what  had  become  a  deadlock.  It 
was  as  early  as  the  31st  of  May  that  Sherman  said  he 
favored  an  election  to  the  Senate  of  one  member  from 
each  State  by  the  State  legislatures.  At  that  time  no 


100  OUR    CONSTITUTION 

notice  whatever  seems  to  have  been  taken  of  the  sug- 
gestion, but  doubtless  it  had  its  effect  in  the  minds  of 
some  of  the  members,  who  were  thereby  prepared  to 
give  weight  to  the  same  suggestion  later,  when  the 
time  came  that  a  compromise  must  be  found  to  save 
the  Convention  from  a  futile  adjournment.  The  first 
suggestion  for  an  Electoral  College  was  made  by  Wil- 
son, on  June  2d,  who  then  moved,  instead  of  the  Ran- 
dolph plan  for  the  election  of  the  President  (by  the 
Representatives),  the  following  plan :  "That  the  States 
be  divided  into  districts  and  that  the  persons  qualified 
to  vote  in  each  district  for  members  of  the  first  branch 

of  the  National  Legislature,  elect members  for 

their  respective  districts  to  be  electors  of  the  executive 
magistracy.  That  the  said  electors  of  the  executive 

magistracy  meet  at ,  and  they,  or  any of 

them  so  met  shall  proceed  to  elect  by  ballot,  but  not 

out  of  their  own  body  person  in  whom  the 

executive  authority  of  the  national  authority  shall  be 
vested."  The  last  of  the  blanks  left  in  that  resolution 
was  to  be  filled  with  the  number  of  persons  who  were 
to  constitute  the  "Executive  Magistracy,"  for  it  had 
not  then  been  decided  that  the  executive  should  con- 
sist of  one,  two  or  three  persons.  This  plan,  which 
was  really  the  basis  for  the  final  plan,  was  instantly 
opposed  by  Gerry,  who  "was  not  clear  that  the  people 
ought  to  act  directly,  even  in  the  choice  of  electors." 
On  that  day  the  Convention  decided  by  vote  that 
the  President  should  be  elected  by  the  Congress  for 
a  term  of  seven  years.  It  was  on  that  same  day,  too, 
that  one  of  Franklin's  always  interesting  speeches  was 
recorded  by  Madison.  We  are  fortunate  in  that  Frank- 
lin wrote  his  principal  speeches,  and  had  them  read, 
usually  by  Wilson,  and  thus  the  original  coming  into 


A   STRONG  GOVERNMENT   DEMANDED  101 

Madison's  possession  they  are  preserved  literally. 
Franklin  was  opposed  to  paying  a  salary  to  the  Presi- 
dent, and  although  the  question  was  not  at  that  time 
before  the  Committee  of  the  Whole,  it  was  always 
ready  to  hear  his  views  on  any  subject  at  any  time. 
The  chief  interest  in  the  address  for  us  to-day  is  in 
the  arguments  advanced  why  the  President  should 
serve  without  salary.  "Sir,"  he  said,  "there  are  two 
passions  which  have  a  powerful  influence  on  the  af- 
fairs of  men.  They  are  ambition  and  avarice;  the  love 
of  power  and  the  love  of  money.  Separately,  each  of 
these  has  great  force  in  moving  men  to  action;  but 
when  united  in  view  of  the  same  objects,  they  have  in 
many  minds  the  most  violent  effects.  Place  before  the 
eyes  of  such  men  a  post  of  honor  that  shall  at  the  same 
time  be  a  place  of  profit,  and  they  will  move  heaven 
and  earth  to  obtain  it.  *  *  *  And  of  what  kind 
are  these  men  who  will  strive  for  this  profitable  pre- 
eminence, throughout  all  the  bustle  of  cabal,  the  heat 
of  contention,  the  infinite  mutual  abuse  of  parties, 
tearing  to  pieces  the  best  of  characters?  It  will  not 
be  the  wise  and  moderate,  the  lovers  of  peace  and  good 
order,  the  men  fittest  for  the  trust.  It  will  be  the 
bold  and  the  violent,  the  men  of  strong  passions  and 
indefatigable  activities  in  their  selfish  pursuits.  These 
will  thrust  themselves  into  your  Government  and  be 
your  rulers.  And  these,  too,  will  be  mistaken  in  the 
expected  happiness  of  their  situation:  for  their  van- 
quished competitors  of  the  same  spirit,  and  from  the 
same  motives,  will  perpetually  be  endeavoring  to  dis- 
tress their  administration,  thwart  their  measures,  and 
render  them  odious  to  the  people." 

But  Franklin's  fellow-delegates  could  not  foresee 
that  a  man  with  strong  passions  should  ever  strive 


102  OUR   CONSTITUTION 

for  the  great  office  they  were  about  to  create,  nor 
that  the  office  would  ever  be  filled  by  a  man  who  would 
rouse  up  vanquished  competitors  who  would  perpetu- 
ally be  endeavoring  to  thwart  his  measures.  They  had 
their  eyes  fixed  on  Washington,  who  all  knew  would 
be  the  first  President  if  their  work  bore  such  fruit  as 
they  hoped,  and  they  all  knew  that  he  had  served 
eight  years  as  Commander-in-Chief  of  their  victorious 
army,  and  refused  to  accept  any  pay  whatever  for  his 
services,  or  recompense  for  his  great  material  sacri- 
fices made  in  the  performance  of  his  arduous  duties. 

On  the  day  Franklin  made  that  speech,  O.  Pinckney 
moved  that  the  blank  for  the  number  of  persons  in  the 
executive  be  filled  with  the  words  "one  person." 

Eandolph  opposed  this  earnestly,  declaring  that  he 
felt  an  opposition  to  a  single  executive  which  he 
should  continue  to  feel  as  long  as  he  lived.  The  per- 
manent temper  of  the  people  was  adverse  to  the  very 
semblance  of  monarchy;  that  the  necessary  confidence 
would  never  be  reposed  in  a  single  executive.  He 
favored  three  members  of  the  executive  to  be  drawn 
from  different  parts  of  the  country. 

Wilson  favored  the  single  executive,  saying:  "All 
persons  know  that  a  single  magistrate  is  not  a  king. 
All  the  thirteen  States,  although  agreeing  in  scarce 
any  other  instance,  agree  in  placing  a  single  magis- 
trate at  the  head  of  the  Government.  The  idea  of 
three  heads  has  taken  place  in  none." 

Wilson's  line  of  argument  suggests  how  much  the 
members  of  the  Convention  depended  upon  the  con- 
stitutions of  the  States  for  sources  for  the  details  of 
their  work.  This  we  shall  see  in  detail  later. 

On  June  4th,  the  idea  that  the  President  might  have 
the  advice  of  a  Cabinet  in  the  organization  of  his  de- 


A   STRONG   GOVERNMENT   DEMANDED  103 

partment  seems  first  to  have  been  expressed.  Mr. 
Sherman  was  advocating  the  single  executive  motion, 
and  said:  ''It  should  be  also  remarked  that  in  all  the 
States  there  was  a  council  of  advice,  without  which 
the  first  magistrate  could  not  act.  A  council  will  be 
necessary  to  make  the  establishment  (of  a  chief  ex- 
ecutive) acceptable  to  the  people."  On  the  question, 
the  single  executive  motion  was  carried,  and  it  is  in- 
teresting to  note  that  had  Washington  been  in  the 
chair  and  therefore  not  voting,  the  vote  of  Virginia 
would  not  have  been  counted,  being  equally  divided. 
But  Washington  sat  in  the  body  of  the  Committee  of 
the  Whole  and  voted  in  favor  of  the  single  executive, 
with  Madison  and  McClurg;  Randolph  and  Blair  vot- 
ing no,  and  Mason  absent. 

In  view  of  the  intimate  familiarity  of  the  members 
of  the  Convention  with  the  construction  and  working 
of  the  British  Parliament,  it  is  notable  how  seldom, 
comparatively,  that  body  was  referred  to  as  either  a 
model  for  their  work,  or  as  something  to  be  avoided 
in  their  work.  Latter-day  historians  have  professed 
to  find  many  likenesses  between  the  functions,  privi- 
leges and  limitations  of  the  House  of  Commons,  the 
House  of  Lords  and  the  British  Monarch,  and  the 
American  House  of  Representatives,  Senate  and  Presi- 
dent. Mr.  Dickinson  was  one  of  the  few  delegates  of 
the  first  order  of  talents  who  forthrightly  recom- 
mended the  British  institutions  as  a  model.  "In  the 
formation  of  the  Senate,"  he  said,  "we  ought  to  carry 
it  through  such  a  refining  process  as  will  assimilate 
it  as  near  as  may  be  to  the  House  of  Lords  in  Eng- 
land." On  June  7th,  Dickinson,  speaking  again  on  the 
method  of  electing  the  Senate,  is  thus  reported  by 


104'  OUR    CONSTITUTION 

Madison:  "He  wished  the  Senate  to  consist  of  the 
most  distinguished  characters,  distinguished  for  their 
rank  in  life  and  their  weight  of  property,  and  bearing 
as  strong  a  likeness  to  the  British  House  of  Lords  as 
possible." 

As  we  shall  see  in  the  next  chapter,  the  question 
of  ratio  of  representation  of  the  States  was  the  one 
which  most  nearly  disrupted  the  Convention,  owing 
to  the  belief  of  the  small  States  that  proportional 
representation  would  give  the  larger  States  the  power 
— and  a  power  they  would  use — to  oppress  the  smaller. 
On  this  question,  Franklin  as  usual  spoke  such  words 
of  calm  sense  as  were,  for  a  time,  rare,  strangely  so. 
"I  do  not  at  present  see,"  he  said,  "what  advantage 
the  greater  States  could  propose  to  themselves  by 
swallowing  the  smaller  States,  and  therefore  do  not 
apprehend  that  they  would  attempt  it." 

Some  were  for  considering  what  the  people  would 
approve,  and  recommending  such  things;  and  it  was 
in  rebuke  of  such  weak  opportunism  that  Washington 
interposed  with  his  immortal  speech  which,  says 
Fiske,  "ought  to  be  emblazoned  in  letters  of  gold,  and 
posted  on  the  wall  of  every  American  Assembly  that 
shall  meet  to  nominate  a  candidate,  or  pass  a  law,  so 
long  as  the  weakness  of  human  nature  shall  endure." 
Washington's  solemn  warning  was  in  these  words : 

"It  is  too  probable  that  no  plan  we  propose  will  be 
adopted.  If  to  please  the  people  we  offer  what  we 
ourselves  disapprove,  however  can  we  afterwards  de- 
fend our  work?  LET  US  RAISE  A  STANDARD  TO 
WHICH  THE  WISE  AND  HONEST  CAN  REPAIR; 
THE  EVENT  IS  IN  THE  HAND  OF  GOD." 


CHAPTER  IV 

( 

BEGINNING   THE    STRUCTURE 

A  GERMAN  writer  speaks  of  America's  "worship  of 
the  Constitution,"  the  "Constitution  a  national  fetish," 
and  presumably  he  speaks  in  a  mood  of  gentle  reproof. 
But  to  an  American  who  loves  his  country  and  its  in- 
stitutions it  is  difficult,  while  studying  the  work  of  the 
Convention,  not  to  be  filled  with  a  kind  and  degree  of 
wonder  which  an  unmoved  critic  might  translate  into 
worship;  difficult,  while  viewing  passionate  conten- 
tions disappearing  at  last  before  the  vastly  deeper  and 
nobler  emotion,  the  patriotic  determination  to  aban- 
don all  personal  desire  and  conviction;  while  viewing 
the  subsidence  of  resentment  over  the  rejection  of 
warmly  cherished  theories,  and  acceptance  of  theories 
of  opponents  when  endorsed  by  the  majority.  Par- 
tisanship gave  way  to  patriotism,  contention  to  con- 
ciliation, all  other  passions  and  motives  to  the  wish 
for  the  good  of  a  common  country. 

"The  Constitution  was  extorted  from  the  grinding 
necessities  of  a  reluctant  people,"  says  another  writer, 
and  the  statement  has  been  justified,  in  the  opinion  of 
some,  by  such  figures  as  that  a  change  of  3  votes  out 
of  60  in  the  New  York  convention — when  the  Con- 
stitution was  submitted  for  ratification — of  5  votes  out 
of  168  in  the  Virginia  convention,  of  10  out  of  358  in 
Massachusetts  would  have  defeated  ratification  in 

105 


106  OUR    CONSTITUTION 

those  States.  Such  argument  is  based  on  a  familiar 
misuse  of  figures.  It  might  be  said  that  in  spite  of  its 
novelty,  of  the  fears  of  the  timid  and  doubts  of  the 
conservative;  in  spite  of  the  desperate  efforts  of  dema- 
gogues afraid  of  loss  of  political  importance;  in  spite 
of  the  difficulty  of  waging  a  campaign  of  education 
when  there  were  few  daily  papers,  poor  and  infrequent 
postal  service,  no  railroads,  no  telegraph;  in  spite  of 
these  handicaps  to  the  dissemination  of  intelligence 
and  views,  the  few  who  did  understand  the  Constitu- 
tion were  yet  able  to  make  converts  so  fast  that  they 
secured  ratification  in  all  the  States.  The  people  do 
not  seem  to  have  been  reluctant. 

Mr.  Gladstone  has  been  much  criticized  for  saying: 
"The  American  Constitution  is  the  most  wonderful 
work  ever  struck  off  at  a  given  time  by  the  brain  and 
purpose  of  man.''  His  critics  have  deemed  the  phrase 
"struck  off''  evidence  of  Gladstone's  belief  that  the 
Convention  met  and  by  some  magic  instantly  framed 
the  Constitution.  We  can  hardly  be  doing  violence 
to  probability  if  we  assume  that  Gladstone  could  have 
stood  a  fair  examination  on  the  subject  of  the  Phila- 
delphia Convention  of  1787,  even  to  answering,  if 
asked,  that  it  first  met  May  15th  and  finally  adjourned 
September  17th.  Historically,  a  thing  which  profoundly 
affects  world  politics,  commerce,  industry,  diplomacy, 
political  geography  and  many  great  international  re- 
lations can  be  said  to  have  been  "struck  off"  when  it 
is  done  in  that  space  of  time. 

Before  we  examine  the  Convention's  work  in  detail, 
two  more  views  of  it  may  serve  as  lamps;  they  cer- 
tainly sustain  us  in  a  willingness  to  accept  Gladstone's 
judgment,  and  console  us  for  the  reproof  that  we  wor- 
ship the  Constitution.  Said  Marshall,  the  great  Chief 


BEGINNING  THE  STRUCTURE  107 

Justice  of  the  Supreme  Court,  who  did  so  much  to 
interpret  and  apply  the  Constitution : 

"A  Constitution,  to  contain  an  accurate  detail  of  all 
the  subdivisions  of  which  its  great  powers  will  admit, 
and  of  all  the  means  by  which  they  may  be  carried 
into  execution,  would  partake  of  the  prolixity  of  a 
legal  code,  and  could  scarcely  be  embraced  by  the 
human  mind.  It  would  probably  never  be  understood 
by  the  public.  Its  nature,  therefore,  requires  that  only 
its  great  outlines  should  be  marked,  its  important  ob- 
jects designated,  and  the  minor  ingredients  which 
compose  those  objects  be  deduced  from  the  nature  of 
the  objects  themselves." 

There  is  the  opinion  of  a  great  jurist  as  to  what  a 
constitution  should  be,  and  let  us  see  what  a  great 
historian  says  as  to  what  our  Constitution  is,  in  that 
respect.  James  Bryce,  in  his  American  Commonwealth, 
says: 

"History  knows  few  instruments  which,  in  so  few 
words,  lay  down  equally  momentous  rules  on  a  vast 
range  of  matters  of  the  highest  importance  and  com- 
plexity. The  Convention  of  1787  were  well  advised  in 
making  their  draft  short,  because  it  was  essential  that 
the  people  should  comprehend  it,  because  fresh  dif- 
ferences of  views  would  have  emerged  the  further 
they  had  gone  into  details,  and  because  the  more  one 
specifies,  the  more  one  has  to  specify  and  to  attempt 
the  impossible  task  of  providing  beforehand  for  all 
contingencies.  These  sages  were  therefore  content  to 
lay  down  a  few  general  rules  and  principles,  leaving 
some  details  to  be  filled  in  by  Congressional  legisla- 
tion, and  foreseeing  that  for  others  it  would  be  neces- 
sary to  trust  to  interpretation." 

As  we  have  seen,  the  Convention  first  worked  on 


108  OUR   CONSTITUTION 

the  resolutions  offered  by  Randolph.  These  were  con- 
sidered clause  by  clause  by  the  members  sitting  as  a 
Committee  of  the  Whole  until  June  13th,  when  the 
committee  reported  nineteen  resolutions  elaborating 
those  of  Randolph.  The  Paterson  resolutions,  favor- 
ing a  confederation  instead  of  a  national  government, 
as  provided  for  in  the  resolutions  founded  on  Ran- 
dolph's, were  then  offered  June  15th,  but  after  a  brief 
consideration  the  committee  reported  in  favor  of  pro- 
ceeding along  the  line  of  the  nineteen  resolutions,  and 
this  was  done  until  the  plan  was  further  elaborated 
into  twenty-three  resolutions  clearly  indicating  in  the 
essentials  what  the  majority  of  States  desired.  On 
July  26th  these  resolutions  were  referred  to  a  com- 
mittee to  prepare  a  draft  of  a  constitution.  This  com- 
mittee was  composed  of  Rutledge,  Randolph,  Gorham, 
Ellsworth  and  Wilson,  and  to  give  it  time  to  prepare  a 
draft  an  adjournment  was  taken  to  August  6th,  when 
a  report  was  made  and  a  copy  of  the  draft  laid  on  each 
member's  desk.  Without  a  day's  delay,  although  some 
asked  for  time  to  study  the  draft,  without  going  again 
into  Committee  of  the  Whole,  although  this,  too,  was 
asked  for,  without  a  single  day's  recess,  except  the 
usual  adjournment  over  Sundays,  through  the  swelter- 
ing weeks  of  August  and  September  the  Convention 
worked  on  every  article,  section,  clause,  sentence — 
every  word,  almost — until,  having  passed  through 
the  hands  of  a  Committee  on  Style,  consisting  of 
Johnson,  Hamilton,  Gouverneur  Morris,  Madison  and 
King,  the  great  work  was  completed  and  sent  to  Con- 
gress. 

The  instrument,  as  it  was  thus  framed,  consisted  of 
an  enacting  clause,  sometimes  called  the  preamble, 
and  seven  articles,  most  of  the  latter  being  divided 


BEGINNING  THE  STRUCTURE  109 

into  numbered  sections,  and  these  sometimes  sub- 
divided into  clauses  not  numbered,  but  which,  in  mod- 
ern printing,  bear  editorial  numbers,  given  to  them  to 
assist  reference.  Only  three  members,  Randolph, 
Mason  and  Gerry,  of  the  forty-two  present  on  the  day 
of  final  adjournment,  refused  to  sign.  The  overwhelm- 
ing majority  of  signers  was  made  possible  through 
three  great  compromises,  and  many  accommodations 
of  conflicting  or  divergent  views  on  minor  points. 
These  compromises  will  appear  as  we  proceed  with  a 
detailed  examination.  The  enacting  language  of  the 
preliminary  clause  is  as  follows: 

"We,  the  people  of  the  United  States,  *  *  *  do 
ordain  and  establish  this  Constitution  of  the  United 
States  of  America." 

The  reason  that  the  clause  is  sometimes  called  a 
preamble  is  that  it  includes  a  statement  of  the  ob- 
jects for  which  the  Constitution  is  created,  namely: 

(1)  In  order  to  form  a  more  perfect  union ;  (2)  to  es- 
tablish justice;  (3)  to  insure  domestic  tranquillity;  (4) 
to  provide  for  the  common  defense;  (5)  to  promote  the 
general  welfare,  and  (6)  to  secure  the  blessings  of  lib- 
erty to  ourselves  and  our  posterity. 

Proceeding,  we  can  now  take  up  for  examination 
the  seven  Articles  and  their  Sections  in  order.  The 
capitalization  and  punctuation  here  used,  when  text 
of  the  Constitution  is  copied,  follows  that  in  the  copy 
of  the  Constitution  filed  by  President  Washington 
with  the  Secretary  of  State  in  1796,  and  used  in  the 
Documentary  History  of  the  Constitution,  issued  by  au- 
thority of  Congress.  The  full  text  of  the  Constitution 
and  Amendments  will  be  found  in  the  Appendix  of 
this  book,  and  its  study  as  a  whole,  after  the  study 
clause  by  clause,  is  urged. 


110  OUR   CONSTITUTION 

Article  I,  Section  1. — All  legislative  Powers  herein 
granted  shall  be  vested  in  a  Congress  of  the  United 
States,  which  shall  consist  of  a  Senate  and  House  of 
Representatives. 

This  provision  of  a  law-making  body,  consisting  of 
two  houses,  was  natural  enough  since  all  the  States 
except  Pennsylvania  had  each  a  two-house  Legislature 
(although  until  1789  Georgia's  second  House,  if  it 
could  be  so  called,  was  elected  by  the  first  House  from 
among  its  own  members).  But  the  small  States,  when 
they  secured  equal  representation  in  the  Senate, 
sought  to  defeat  the  two-house  Congress  and  thus  gain 
their  point  completely.  Paterson  argued  that  while 
there  might  be  reason  for  a  two-house  Legislature  in 
the  States,  where  hasty  legislation  might  be  feared, 
no  such  check  was  needed  for  a  national  legislature, 
where  the  States  would  be  a  check  on  each  other. 
Wilson  replied  that  a  one-house  Legislature  would 
create  danger  of  despotism;  Sherman  said  all  con- 
federacies had  a  one-house  Legislature,  and  Wilson 
replied  again  that  it  was  not  strange  that  they  could 
find  no  precedent  among  confederacies  as  their  num- 
ber was  small  and  their  lives  short.  Lansing  argued 
that  the  Convention  was  without  power  to  provide 
other  than  a  single-house  Congress.  Madison  and 
Mason  spoke  in  favor  of  a  two-house  Legislature  as 
likely  to  command  the  confidence  of  the  people,  secure 
considered  legislation,  and  provide  a  desired  check. 
On  the  vote,  seven  States  favored  the  two-house  plan, 
New  York,  New  Jersey  and  Delaware  opposed,  and 
Maryland  was  divided.  Jefferson  was  in  France  at 
the  time  of  the  Convention,  but  on  his  return  he  said 
to  Washington  that  he  considered  the  two-house  pro- 
vision one  of  the  worst  in  the  Constitution.  He  was 


BEGINNING  THE  STRUCTURE  111 

in  Washington's  New  York  residence,  taking  a  cup  of 
tea,  which  he  cooled  in  the  familiar  manner.  "The 
second  House  is  a  good  thing,"  Washington  replied, 
with  a  smile;  "it  will  turn  our  hot  cups  of  legislation 
into  our  saucers  to  cool." 

The  names  Congress,  Senate  and  House  of  Repre- 
sentatives were  familiar  to  the  members,  and  crept 
into  the  debates  before  they  were  formally  incorpo- 
rated into  any  reports.  Senate  was  the  name  of  the 
upper  House  in  New  Hampshire,  Massachusetts,  New 
York,  Maryland,  Virginia  and  the  Carolinas.  House 
of  Representatives  was  the  name  of  the  lower  House 
in  New  Hampshire,  Massachusetts,  South  Carolina 
and  the  single  house  in  Pennsylvania.  But  neither  in 
the  Constitution  nor  the  laws  are  the  popular  names, 
lower  and  upper  House,  found. 

Article  I,  Section  2,  Clause  1. — The  House  of  Rep- 
resentatives shall  be  composed  of  Members  chosen 
every  second  Year  by  the  People  of  the  several  States, 
and  the  Electors  in  each  State  shall  have  the  Qualifi- 
cations requisite  for  Electors  in  the  most  numerous 
Branch  of  the  State  Legislature. 

Some  members  proposed  that  the  term  of  Represen- 
tatives should  be  one  year,  some  two  years  and  some 
three  years.  The  short-term  argument  was  based  on 
the  belief  that  such  a  term  would  keep  Representa- 
tives alive  to  their  dependence  on  the  people;  the  long- 
term  advocates  thought  thus  to  secure  stability.  The 
term  agreed  upon  also  determines  the  length  of  Con- 
gress, two  years.  The  first  Congress  began  March  4, 
1789;  the  Fifty-ninth  Congress  began  March  4,  1905. 
The  right  of  the  people  directly  to  choose  their  rep- 
resentatives in  even  one  branch  of  Congress  was  not 


112  OUR   CONSTITUTION 

gained  without  a  struggle.  The  fourth  Randolph  reso- 
lution declared  for  this  method,  but  when  considera 
tion  was  reached,  Sherman  opposed  it  on  the  ground 
that  the  people  lacked  knowledge.  He  wanted  the 
Representatives  elected  by  the  State  legislatures. 
Mason  favored  election  by  the  people,  which  would 
make  the  House  of  Representatives  the  depository  of 
the  democratic  spirit.  Wilson  and  Madison  also  ar- 
gued in  favor  of  the  method  which  was  adopted,  with 
only  two  States  voting  against  it;  but  the  triumph  of 
democracy  was  not  yet  secured.  A  week  later  Charles 
Pinckney  obtained  reconsideration.  He  made  the 
familiar  argument  as  to  the  unfltness  of  the  people, 
adding  the  new  argument  that  if  the  State  legislatures 
were  given  the  privilege  of  electing  members  of  the 
House  of  Representatives  they  (the  members  of  the 
State  legislatures)  would  be  less  likely  to  oppose  rati- 
fication of  the  new  Constitution.  Cotesworth  Pinck- 
ney also  favored  election  by  the  State  legislatures  as 
likely  to  secure  safer  men,  and  again  Sherman  argued 
that  the  people  were  unfit  to  trust  with  the  election. 
If  the  State  governments  were  to  continue,  he  said,  it 
was  necessary,  in  order  to  secure  harmony  between 
the  States  and  the  nation,  that  the  States  should  elect 
the  members  of  the  National  Legislature.  But  again 
the  proposed  method  for  election  by  the  people  was 
adopted,  although  this  time  three  States  voted  in  op- 
position. This  encouraged  the  advocates  of  election 
by  State  legislatures,  and  a  couple  of  weeks  later 
C.  C.  Pinckney  once  more  raised  the  question  by  mov- 
ing that  members  of  the  House  of  Representatives 
"should  be  elected  in  such  manner  as  the  Legislature 
of  each  State  should  direct."  This  was  lost,  although 
four  States  favored  it;  and  then,  at  last,  by  a  vote  of 


BEGINNING  THE  STRUCTURE  113 

nine  States,  one  State  not  voting,  it  was  finally  de- 
cided to  adopt  the  plan  for  electing  Representatives 
by  the  people. 

Article  I,  Section  2,  Clause  2. — No  Person  shall  be 
a  Representative  who  shall  not  have  attained  to  the 
Age  of  twenty-five  Years,  and  been  seven  Years  a 
Citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  Inhabitant  of  that  State  in  which  he 
shall  be  chosen. 

There  are,  it  is  seen,  but  three  qualifications:  age, 
citizenship  and  inhabitancy.  Other  qualifications 
were  introduced  by  the  Fourteenth  Amendment,  but 
they  refer  to  conditions  growing  out  of  the  Civil  War, 
which  have  almost  entirely  disappeared.  It  will  be 
noticed  that  a  Representative  need  not  be  an  inhabit- 
ant of  the  district  which  elects  him  (that  he  shall  be 
elected  from  a  district  is  an  after  provision  of  the  law), 
but  only  an  inhabitant  of  the  State.  It  is  interesting 
also  to  note  the  phrase  "a  citizen  of  the  United 
States,"  which  is  one  way  of  asserting  that  this  is  a 
nation,  of  which  a  person  may  be  a  citizen,  not  a  Con- 
federation, of  which  a  person  could  be  a  citizen  of 
but  one  of  the  confederated  parts. 

Article  I,  Section  2,  Clause  3. — Representatives  and 
direct  Taxes  shall  be  apportioned  among  the  several 
States  which  may  be  included  within  this  Union,  ac- 
cording to  their  respective  Numbers,  which  shall  be 
determined  by  adding  to  the  whole  Number  of  free 
Persons,  including  those  bound  to  Service  for  a  Term 
of  Years,  and  excluding  Indians  not  taxed,  three  fifths 
of  all  other  Persons.  The  actual  Enumeration  shall 
be  made  within  three  Years  after  the  first  Meeting  of 
the  Congress  of  the  United  States,  and  within  every 
subsequent  Term  of  ten  Years,  in  such  Manner  as 


114  OUR   CONSTITUTION 

they  shall  by  Law  direct.  The  Number  of  Representa- 
tives shall  not  exceed  one  for  every  thirty  Thousand, 
but  each  State  shall  have  at  Least  one  Representative; 
and  until  such  enumeration  shall  be  made,  the  State 
of  New  Hampshire  shall  be  entitled  to  choose  three, 
Massachusetts  eight,  Rhode-Island  and  Providence 
Plantation  one,  Connecticut  five,  New  York  six,  New 
Jersey  four,  Pennsylvania  eight,  Delaware  one,  Mary- 
land six,  Virginia  ten,  North  Carolina  five,  South  Caro- 
lina five,  and  Georgia  three. 

This  clause  relates  to  representation,  not  voting: 
that  is,  the  Constitution  determines  the  basis  for  ap- 
portionment of  Representatives,  the  States  themselves 
(subject  only  to  the  Fifteenth  Amendment)  determine 
who  may  vote,  and  those  the  States  say  may  vote  for 
members  of  the  most  numerous  branch  of  their  legis- 
latures may,  under  the  Constitution,  vote  for  Repre- 
sentatives in  Congress.  Thus  in  some  States  women 
vote  for  Representatives.  It  provides  only  for  Repre- 
sentatives of  States;  Congress  by  laws  has  provided 
for  a  delegate  in  the  House  from  each  Territory,  who 
is  allowed  to  speak  but  not  to  vote.  While  provision 
is  made  for  determining  what  number  of  Representa- 
tives each  State  shall  have,  it  is  stipulated  that  each 
State  shall  have  at  least  one.  The  wisdom  of  this  is 
shown  by  the  fact  that  at  times  several  States  have 
not  had  the  population  fixed  by  law  as  entitled  to  a 
Representative.  The  rule  for  apportionment  involved 
the  question:  Shall  slaves  be  regarded  as  persons  or 
property?  The  decision  was  that  a  slave  should  count 
as  three-fifths  of  a  person  in  apportioning  representa- 
tion and  direct  taxes ;  that  is,  five  slaves  to  be  counted 
as  three  persons.  This  three-fifths  rule,  of  course,  in- 
creased the  representation  of  the  voters  of,  as  well  as 
the  amount  of  direct  taxes  imposed  upon,  the  slave 


BEGINNING  THE   STRUCTURE  115 

> 

States  until  the  abolition  of  slavery.  Congress  has 
imposed  direct  taxes  (except  when  Congress  has  been 
overruled  by  the  Supreme  Court)  but  five  times,  and 
for  brief  periods. 

The  second  section  of  the  Fourteenth  Amendment 
makes  the  apportionment  rule  read:  "Representatives 
shall  be  apportioned  among  the  several  States  accord- 
ing to  their  respective  numbers,  counting  the  whole 
number  of  persons,  excluding  Indians  not  taxed." 
The  expression  "Indians  not  taxed"  means  Indians 
who  keep  up  tribal  relations,  and  are  recognized  as 
tribes  by  the  Government,  which  helps  to  maintain 
them  on  what  are  called  Indian  Reservations.  The 
scattered  remnants  of  tribes  found  in  larger  or  smaller 
numbers  in  nearly  every  State,  are  regarded  as  having 
been  absorbed  into  the  body  of  citizens,  subject  to  tax- 
ation, and  therefore  not  excluded  in  representation 
census. 

The  ratio  of  representation  was  first  fixed  at  forty 
thousand  in  the  Convention,  but  was  changed  to  thirty 
thousand  at  the  suggestion  of  Washington,  who  said 
that  a  more  numerous  representation  would  tend  to 
quiet  the  fears  of  those  who  thought  the  new  Govern- 
ment might  be  a  tyranny.  In  1793,  the  ratio  was  made 
one  member  for  every  33,000  persons;  in  1823,  one  for 
every  35,000,  and  with  a  change  thereafter  every  ten 
years  became  in  1903  a  member  for  each  194,182  per- 
sons, giving  a  total  representation  in  the  House  of  386 
members.  The  first  House  contained  65  members. 
Under  an  early  rule  the  total  number  of  persons 
enumerated  in  each  State  was  divided  by  the  ratio 
number  to  determine  the  State's  representation,  but 
with  the  enormously  greater  population  the  ratio  num- 
ber also  had  to  be  increased  and  thus  there  was  left  a 


116  OUR   CONSTITUTION 

large  fraction  unrepresented  in  some  States,  and  the 
rule  was  changed  so  as  to  avoid  leaving  a  fraction 
more  than  one-half  of  the  ratio  number  unrepresented. 

It  simplifies  an  account  of  the  Convention  struggle 
over  the  principles  involved  in  this  clause  to  treat  as 
one  question  representation  in  the  House  (covered  by 
the  clause  we  have  been  considering)  and  in  the  Sen-  ( 
ate  (covered  by  Section  3,  Clause  1,  of  the  same  Arti- 
cle), for  the  compromise  which  finally  ended  the  strug- 
gle included  both.  The  clause  was  the  outgrowth  of 
the  second  Randolph  resolution:  "That  the  rights  of 
suffrage  in  the  National  Legislature  ought  to  be  pro- 
portioned to  the  quotas  of  contribution  (taxes  paid  for 
the  support  of  the  Government),  or  to  the  number  of 
free  inhabitants,  as  one  or  the  other  rule  might  seem 
best  in  different  cases."  Here  was  the  question  whose 
settlement  strained  the  Convention  almost  to  the 
breaking  point;  the  contention  being  between  the 
smaller  States  favoring  equal  representation  in  Con- 
gress, and  the  larger  States  which  wanted  propor- 
tional representation,  the  larger  States  being  at  times 
aided  by  the  Carolinas  and  Georgia,  who  had  faith  in 
their  ultimate  gain  in  representation  by  growth  in 
population.  It  will  be  remembered  that  in  the  then 
single-house  Congress  each  State  had  one  vote;  no 
matter  how  many  delegates  it  sent  or  had  present, 
when  it  came  to  voting  all  were  equal.  This  was  a 
precedent  which  gave  the  smaller  States  in  the  Con- 
vention that  respectable  standing  which  a  familiar 
precedent  would  be  certain  to  give  in  such  a  body  as 
the  Constitutional  Convention — but  unfortunately  for 
them  they  had  little  other  strength,  and  the  majority 
was  in  a  mood  to  break  precedents. 

It  was  as  early  as  May  30th  that  Mr.  Bead  of  Dela- 


BEGINNING   THE    STRUCTURE  117 

ware  threatened  to  secede  from  the  Convention  if  it 
so  much  as  considered  proportional  representation  in 
the  National  Legislature.  Gouverneur  Morris  politely 
rejoined  that  "the  valuable  assistance  of  those  mem- 
bers (from  Delaware)  could  not  be  lost  without  real 
concern,  and  that  so  early  proof  of  discord  in  the  Con- 
vention as  the  secession  of  a  State  would  add  much 
to  the  regret ;  that  the  change  proposed  was,  however, 
so  fundamental  an  article  in  a  national  government 
that  it  could  not  be  dispensed  with."  Madison  at  once 
sought  to  clear  the  minds  of  those  who  still  supposed 
that  the  Convention  was  met  to  patch  up  the  old  Arti- 
cles of  Confederation  into  something  with  which  the 
old  Congress  could  continue  to  run  the  country. 
"Whatever  reason,"  he  said,  "might  have  existed  for 
the  equality  of  suffrage  when  the  Union  was  a  federal 
one  among  sovereign  States,  it  might  cease  when  a 
national  government  was  put  into  the  place.  In  the 
former  case" — Confederation — "the  acts  of  Congress 
depended  so  much  for  their  efficacy  upon  the  co-opera- 
tion of  the  States,  that  these  had  a  weight  both  within 
and  without  Congress  nearly  in  proportion  to  their  ex- 
tent and  importance.  In  the  latter  case" — a  National 
Government — "as  the  acts  of  the  general  government 
would  take  effect  without  the  intervention  of  State 
legislatures,  a  vote  from  a  small  State  would  have  the 
same  efficacy  and  importance  as  a  vote  from  a  large 
one." 

Brearly  remarked  that  the  Confederation  had 
rightly  settled  the  question  in  favor  of  equal  repre- 
sentation and  saved  the  smaller  States.  He  would 
not  say  that  Georgia  should  have  an  equal  vote  with 
Virginia;  the  remedy  was  to  wipe  out  existing  bound- 
aries and  redistrict  the  whole  country  into  thirteen 


118  OUK   CONSTITUTION 

equal  parts.  Paterson  also  thought  if  they  were  to 
be  a  nation,  State  distinction  should  be  abolished, 
"and  the  whole  thrown  into  hotch-pot,  and  an  equal 
division  made."  Wilson  contended  that  as  all  au- 
thority was  derived  from  the  people,  equal  numbers 
ought  to  have  an  equal  number  of  representatives; 
different  numbers,  different  numbers  of  representa- 
tives. Franklin  said  he  did  not  believe  the  great 
States  would  swallow  up  the  small.  A  like  fear  had 
been  expressed  when  the  union  of  England  and  Scot- 
land was  under  consideration;  but  the  fear  had  proved 
groundless.  Then  he  made  this  ingenious  exhibition 
of  how  it  would  be  possible  for  the  small  States  not 
only  to  "swallow  up"  the  large  ones,  but  to  rule  by  a 
minority:  Assuming  a  House  of  Representatives  with 
seven  small  States,  each  having  three  members,  and 
six  large  States  having  all  told  36  members.  On  a 
vote,  two  members  of  each  small  State  should  be  in 
the  affirmative,  and  one  in  the  negative;  and  all  the 
large  States  should  vote  unanimously  in  the  negative. 
There  would  be  but  fourteen  individual  votes  in  the 
affirmative,  carrying  seven  States,  and  there  would  be 
43  in  the  negative  (36  from  large  and  7  from  small) 
carrying  but  six  States.  If  the  vote  be  by  States  (as 
in  the  Congress  of  the  Confederation)  14  votes  would 
have  carried  the  question  against  43  votes.  "The 
minority  overpowers  the  majority,  contrary  to  the 
common  practice  of  Assemblies  in  all  countries  and 
all  ages,"  concluded  the  shrewd  Doctor — but  the  de- 
bate went  on. 

The  first  test  vote  was  brought  on  the  motion  of 
King  and  Wilson:  "Suffrage  in  the  House  should  not 
be  according  to  the  Confederation,  but  according  to 
some  equitable  ratio."  This  motion  eliminated  from 


f 


BEGINNING  THE  STRUCTURE  119 

discussion  suffrage  in  the  Senate,  and  referred  only  to 
votes,  not  representation;  that  is,  that  the  Confedera- 
tion plan  of  a  vote  a  State,  irrespective  of  the  repre- 
sentation, should  not  be  adopted  for  the  Union.  The 
motion  carried,  Connecticut,  from  which  the  compro- 
mise was  to  come,  voting  with  the  larger  States 
against  New  York,  New  Jersey  and  Delaware,  with 
Maryland  divided.  The  effort  to  confine  the  discus- 
sion to  representation  in  one  branch  did  not  succeed, 
for  the  principle  of  proportional  or  equal  representa- 
tion in  Congress  as  a  whole  was  the  disturbing  one  in 
the  minds  of  all,  and  could  not  be  separated  by  formal 
motions.  It  was  debated  for  many  days,  and  became 
so  passionate  at  times  that  Franklin,  the  wise,  the 
knower  of  men,  on  June  28,  did  a  characteristic  thing 
to  restore  at  least  momentary  calm.  "Groping  as  it 
were  in  the  dark,"  he  said,  "to  find  political  truth,  and 
scarce  able  to  distinguish  it  when  presented  to  us,  how 
has  it  happened,  sir,  that  we  have  not  hitherto  once 
thought  of  humbly  applying  to  the  Father  of  lights  to 
illuminate  our  understanding?  *  *  *  I  beg  leave  to 
move  that  henceforth  prayers  imploring  the  assistance 
of  heaven,  and  its  blessings  on  our  deliberations,  be 
held  in  this  assembly  every  morning." 

No  vote  was  taken  on  this  pious  motion;  perhaps 
Dr.  Franklin  did  not  expect  that  there  would  be;  he 
had  sobered  the  delegates  for  the  time,  and  that  doubt- 
less was  the  object  of  his  motion.  Indeed,  it  was  time 
a  calm  interval  should  intervene.  Ellsworth  and  Sher- 
man had  proposed  the  compromise  that  representation 
in  the  House  should  be  proportional,  and  in  the  Sen- 
ate equal,  and  Franklin  had  endorsed  it  with  the  re- 
mark that  when  a  carpenter  wishes  to  fit  two  boards 
he  sometimes  pares  off  a  bit  from  both,  but  the  spirit 


120  OUR   CONSTITUTION 

of  compromise  had  not  yet  settled  upon  the  Conven- 
tion. Martin  exclaimed:  "No  compromise  for  us. 
Give  each  State  equal  suffrage  or  our  business  is  at  an 
end."  Sherman  responded  to  this :  "Then  we  are  come 
to  a  full  stop."  On  a  vote,  the  compromisers  gained 
heart,  though  not  a  victory,  for  five  States  voted  Aye 
and  five  No.  A  tie  vote  lost  a  motion,  but  here  was 
ground  for  continuing  the  struggle,  which  would  not 
have  been  the  case  had  the  negatives  been  in  a  major- 
ity. A  negative  majority  at  that  time  would,  in  the 
opinion  of  Fiske,  "in  all  probability  have  broken  up 
the  Convention." 

The  compromise  motion  was  referred  to  a  commit- 
tee, which,  after  three  days'  consideration,  reported  it 
favorably;  but  even  then  the  chairman,  Gerry,  said  he 
did  not  wholly  approve  of  it,  but  had  supported  the 
report  because  "if  nothing  were  done,  war  and  con- 
fusion must  ensue,  the  old  Confederation  being  vir- 
tually at  an  end."  The  smaller  States  were  bitter  and 
threatening.  Bedford  exclaimed:  "Pretences  to  sup- 
port ambition  are  never  wanting.  Gentlemen  (to  the 
delegates  from  the  larger  States),  I  do  not  trust  you. 
If  you  possess  the  power,  the  abuse  of  it  could  not  be 
checked;  and  what  then  would  prevent  you  from  ex- 
ercising it  to  our  destruction?  Sooner  than  be  ruined, 
there  are  foreign  powers  who  will  take  us  by  the 
hands." 

A  threat  to  secede  from  the  Union  had  already  been 
made;  here  was  the  additional  threat  to  go  over  to 
some  foreign  power  for  support.  King  delivered  the 
rebuke,  saying:  "I  am  concerned  for  what  fell  from 
the  gentleman  from  Delaware — take  a  foreign  power  by 
the  hand!  I  am  sorry  he  mentioned  it,  and  I  hope  he  is 
able  to  excuse  it  to  himself  on  the  score  of  passion." 


BEGINNING  THE  STRUCTURE  121 

For  eleven  days  the  committee  report  was  discussed; 
others  threatened  to  leave  the  Convention  if  equal 
representation  was  denied;  one  said  he  would  continue 
to  fight  there  "if  he  had  to  bury  his  bones  in  that 
city,"  rather  than  to  expose  his  country  to  the  conse- 
quences of  the  dissolution  of  the  Convention.  Now 
the  spirit  of  compromise  spread,  and  on  the  next  vote 
the  motion  to  that  end  was  adopted.  The  vote  was: 
Aye,  Connecticut,  New  Jersey,  Delaware,  Maryland, 
North  Carolina,  five;  No,  Pennsylvania,  Virginia, 
South  Carolina,  Georgia,  four.  The  vote  of  Massa- 
chusetts was  lost  by  an  equal  division  of  its  delegates 
present,  and  New  York  could  not  vote  because  of  the 
absence  of  two  of  her  three  delegates,  Lansing  and 
Yates.  They  had  quit  the  Convention  when  the  favor- 
able report  on  the  compromise  was  made,  and  Hamil- 
ton alone  could  not  cast  New  York's  vote.  Martin  also 
went  back  to  Maryland  in  a  rage  when  his  fellow- 
delegates  cast  the  State's  vote  for  the  compromise. 

The  first  great  compromise  helped  the  work,  but 
others  had  to  be  agreed  to  before  it  was  completed. 
How  should  the  slaves  be  counted?  In  the  Northern 
States  slaves  were  rapidly  disappearing,  and  in  Vir- 
ginia such  men  as  Washington,  Madison  and  Mason 
hoped  soon  to  see  their  State  freed  from  slavery. 
Therefore,  if  slaves  were  not  counted  in  the  appor- 
tionment of  Representatives,  Washington  and  his  fel- 
low anti-slavery  delegates  would  have  less  trouble  in 
inducing  the  Virginia  Legislature  to  abolish  slavery; 
if  the  slaves  helped  Virginia  to  gain  representation  in 
the  House,  the  struggle  for  abolition  would  be  made 
more  difficult.  But  South  Carolina  could  not  be 
moved  from  her  determination  to  have  representation 
in  one  branch  of  Congress  in  proportion  to  her  whole 


122  OUR  CONSTITUTION 

number  of  inhabitants,  including  slaves;  otherwise  she 
feared  she  would  be  oppressed  through  navigation 
laws  by  the  non-slave-holding  States.  South  Carolina 
would  probably  carry  North  Carolina  with  her  on  this 
issue,  and  those  who  hoped  to  submit  a  Constitution 
to  all  the  thirteen  States  recalled  that  they  had  been 
helped  in  the  first  compromise  by  the  latter  State. 
The  Constitution  not  only  had  to  be  framed,  but  it 
must  be  ratified  to  make  a  national  government,  and 
it  would  be  dangerous  to  antagonize  the  three  small 
States  south  of  Virginia  to  such  an  extent  as  to  en- 
danger the  prospect  of  their  ratifications.  This  danger 
Madjson  saw,  and  how  clearly  he  saw  into  the  future 
was  demonstrated  later,  for  it  was  South  Carolina's 
timely  ratification  which  probably  saved  the  Constitu- 
tion. So  it  was  Madison  who  proposed  the  compro- 
mise between  counting  slaves  as  "whole"  persons  and 
treating  them  only  as  chattels.  Count  a  slave  as  three- 
fifths  of  a  person,  he  said.  It  was  illogical,  of  course, 
for  under  the  laws  of  the  great  slave-holding  States 
slaves  were  treated  as  chattels,  and  if  they  were  to  be 
otherwise  treated  in  the  Constitution  they  should  have 
been  treated  as  "whole"  persons.  But  expediencies  are 
not  always  based  on  pure  logic,  and  abstract  proposi- 
tions cannot  always  be  maintained  in  the  face  of  a 
demand  for  a  compromise  or  nothing.  Those  from  the 
North  who  now  argued  that  slaves  should  not  be 
counted  for  representation  found  themselves  in  a  posi- 
tion of  weakness  for  which  themselves  were  responsi- 
ble; in  the  Congress  of  four  years  before  the  North 
had  argued  that  the  slaves  should  be  counted  in  de- 
termining the  proportion  of  revenue  each  State  should 
pay,  and  the  South  had  agreed  to  this  increased  tax, 
under  the  same  compromise,  and  proposed  by  the  same 


BEGINNING  THE  STRUCTURE  123 

person,  by  the  way,  Madison.  So  now,  in  the  Conven- 
tion, the  same  compromise  was  adopted,  and  the  Con- 
vention held  together.  Eventually,  slavery  led  to  the 
awful  War  of  Secession,  but,  as  one  historian  has  said: 
"Four  years  of  concentrated  warfare,  animated  by 
an  intense  and  lofty  moral  purpose,  could  not  hurt 
the  character  or  mar  the  features  of  the  people,  like  a 
century  of  aimless  squabbling  over  a  host  of  petty 
local  interests.  The  War  of  Secession  was  a  terrible 
ordeal  to  pass  through;  but  when  one  tries  to  picture 
what  might  have  happened  in  this  fair  land  without 
the  work  of  the  Federal  Convention,  the  imagination 
stands  aghast." 

Article  I,  Section  2,  Clause  4. — When  vacancies  hap- 
pen in  the  Representation  from  any  State,  the  Execu- 
tive Authority  thereof  shall  issue  Writs  of  Election 
to  fill  such  Vacancies. 

Vacancies  are  from  death,  resignation,  expulsion 
and  acceptance  of  an  office  a  person  may  not  hold  and 
be  a  Representative.  A  writ  of  election  as  here  under- 
stood is  a  proclamation  by  a  Governor  announcing  a 
vacancy,  and  appointing  a  day  when  an  election  shall 
be  held  in  the  district  named,  to  fill  such  vacancy. 

Article  I,  Section  2,  Clause  5. — The  House  of  Repre- 
sentatives shall  choose  their  Speaker  and  other 
Officers;  and  shall  have  the  sole  Power  of  Impeach- 
ment. 

The  Speaker  is  a  member  of  the  House  elected  by 
his  fellow-members  to  preside  over  their  meetings. 
The  other  officers  are  Clerk,  Sergeant-at-Arms,  Door- 
keeper, Postmaster  and  Chaplain.  The  Clerk  holda 
office  until  the  Speaker  of  a  succeeding  House  is 


OUR   CONSTITUTION 

eiected,  and  presides  while  the  Bouse  is  electing  a 
Speaker.  An  impeachment  by  the  House  may  be  lik- 
ened to  an  indictment  by  a  grand  jury.  It  is  the 
declaration  by  the  House  laid  before  the  Senate,  that 
the  person  impeached  (indicted)  is  guilty  of  high 
crimes  and  misdemeanors  committed  in  office,  for 
which  he  should  be  brought  to  trial  by  the  Senate. 

Article  I,  Section  3,  Clause  1. — The  Senate  of  the 
United  States  shall  be  composed  of  two  Senators  from 
each  State,  chosen  by  the  Legislature  thereof,  for  six 
Years;  and  each  Senator  shall  have  one  Vote. 

This  clause  was  the  outgrowth  of  the  fifth  Randolph 
resolution,  which  provided  that  the  second  branch  of 
the  National  Legislature  should  be  elected  by  the  first 
out  of  nominations  made  by  State  legislatures.  Three 
other  methods  were  proposed:  appointment  to  the 
Senate  by  the  President,  which  was  opposed  as  tending 
to  monarchy;  direct  election  by  the  people,  opposed 
as  too  democratic,  and  that  it  would  leave  the  landed 
and  property  interests  of  the  country  without  repre- 
sentation in  either  branch,  and  provide  no  means  for 
refining  legislation ;  election  by  the  State  legislatures, 
the  plan  adopted.  Dickinson  moved  this  plan,  argu- 
ing that  the  sense  of  the  States  would  be  better  col- 
lected through  their  legislatures  than  from  the  peo- 
ple; that  the  Senate  should  consist  of  men  most  dis- 
tinguished in  rank  and  property.  Madison  was  afraid 
that  those  legislatures  which  ran  after  paper  money 
and  other  financial  phantasies  could  not  safely  be  de- 
pended upon  to  conserve  property  and  commercial  in- 
terests in  the  choice  for  Senators.  Wilson  wanted 
election  by  the  people  in  districts  which  should  ignore 
State  lines,  and  he  thereby  promptly  antagonized  the 


BEGINNING  THE  STRUCTURE  125 

equal  representation  and  States'  rights  sentiments  in 
the  Convention.  On  the  vote,  only  two  States  were  in 
the  negative,  Pennsylvania  and  Virginia. 

Concerning  the  length  of  Senators'  terms,  opinions 
varied  from  four  years  to  life;  but  the  period  decided 
upon  was  at  last  seen  to  give  permanency  to  the 
Senate  without  taking  from  the  Senator  his  responsi- 
bility to  the  State. 

Each  Senator  shall  have  one  vote,  so  that  a  State 
was  not,  as  in  the  Confederation,  to  vote  as  such — as 
a  State.  A  State's  delegates  in  the  Confederation 
being  equally  divided  the  State  lost  its  vote;  but  in  the 
Senate  a  State  may  be  so  divided  (as  States  frequently 
are)  and  yet  cast  its  two  votes.  It  is  a  not  infrequently 
heard  protest  that  a  State,  Nevada,  for  example,  with 
only  about  one-twentieth  the  population  of  New  York, 
yet  has  the  same  power  in  the  Senate.  That  future 
generations  might  so  complain,  and  even  demand  a 
change  in  that  respect,  was  foreseen  by  the  Conven- 
tion, for  the  permanency  of  this  State  equality  in  the 
Senate  is  exceptionally  provided  for  in  another  article : 
"No  State,  without  its  consent,  shall  be  deprived  of 
its  equal  suffrage  in  the  Senate."  Many  proposals  in 
the  press  and  elsewhere  for  a  Constitutional  amend- 
ment providing  for  the  election  of  Senators  by  the 
direct  vote  of  the  people  have  been  made  within  the 
past  few  years.  Twice  the  House  of  Representatives 
has  voted,  by  the  requisite  two-thirds  majority,  to  sub- 
mit such  an  amendment  to  the  States,  but  the  Senate 
has  not  concurred. 

Article  I,  Section  3,  Clause  2. — Immediately  after 
they  shall  be  assembled  in  Consequence  of  the  first 
Election,  they  shall  be  divided  as  equally  as  may  be 
into  three  Classes.  The  Seats  of  the  Senators  of  the 


126  OUR   CONSTITUTION 

first  Class  shall  be  vacated  at  the  Expiration  of  the 
second  Year,  of  the  second  Class  at  the  Expiration 
of  the  fourth  Year,  and  of  the  third  Class  at  the 
Expiration  of  the  sixth  Year,  so  that  one  third  may 
be  chosen  every  second  Year;  and  if  Vacancies  happen 
by  Resignation,  or  otherwise,  during  the  Recess  of  the 
Legislature  of  any  State,  the  Executive  thereof  may 
make  temporary  Appointments  until  the  next  Meet- 
ing of  the  Legislature,  which  shall  then  fill  such 
Vacancies. 

The  division  into  classes  here  provided  for  was  first 
made  May  15, 1789,  ten  States  having  elected  Senators. 
Class  one,  consisting  of  seven  Senators,  retired  in  two 
years;  class  two,  of  seven,  in  four  years,  and  class 
three,  of  six  Senators,  in  six  years.  It  was  ordered 
that  as  they  should  take  their  seats  new  Senators 
should  be  classified  so  as  to  keep  the  classes  as  nearly 
equal  as  possible,  and  not  to  have  both  Senators  from 
a  State  in  the  same  class.  Thus,  to-day,  the  classes 
expire,  class  two,  in  1907,  class  three  in  1909,  class 
one  in  1911. 

A  Senator  appointed  by  a  Governor  to  fill  a  vacancy 
holds  until  his  successor  is  elected  by  the  next  meet- 
ing of  the  State  Legislature,  or  the  end  of  the  legis- 
lative session  if  the  Legislature  fail  to  elect.  In  the 
latter  case  the  Governor  cannot  fill  the  vacancy. 

Article  I,  Section  3,  Clause  3. — No  Person  shall  be  a 
Senator  who  shall  not  have  attained  to  the  Age  of 
thirty  Years,  and  been  nine  Years  a  Citizen  of  the 
United  States,  and  who  shall  not,  when  elected,  be  an 
Inhabitant  of  that  State  for  which  he  shall  be  chosen. 

The  kind  of  qualification  is  the  same  for  both 
branches,  the  difference  being  that  of  years  only;  five 
more  years  of  age,  two  years  more  of  citizenship,  if 


BEGINNING  THE  STRUCTURE  127 

the  Senator  be  foreign  born.  The  Convention  deemed 
that  this  difference  would  secure  a  body  of  men  pos- 
sessing dignity,  a  sense  of  responsibility,  and  a  knowl- 
edge of  the  country's  political  institutions.  Making  a 
foreign-born  citizen  eligible  to  the  Senate  after  any 
number  of  years  of  citizenship  was  not  agreed  to 
without  protest.  Gouverneur  Morris,  one  of  the 
strongest  men  in  the  Convention,  argued  against  it. 
"Society,"  he  said,  "from  a  great  nation,  down  to  a 
club,  had  the  right  of  declaring  on  what  conditions 
new  members  should  be  admitted.  He  did  not  wish 
to  see  any  foreigners  in  our  public  councils.  The  men 
who  could  shake  off  their  attachments  to  their  own 
countries  can  never  love  any  other.  There  was  no 
knowing  what  legislatures" — who  were  to  elect  the 
Senators — "would  do."  In  this  latter  doubt  Mr.  Wil- 
liamson agreed  with  Mr.  Morris,  for  he  made  this  argu- 
ment, which,  in  view  of  some  recent  political  criticism, 
has  a  prophetic  note.  It  was  more  necessary,  he  said, 
to  safeguard  the  Senate  than  the  House,  from  election 
thereto  of  unworthy  persons.  "Bribery  and  cabal  can 
be  more  easily  practiced  in  the  choice  of  the  Senate, 
which  is  to  be  made  by  the  legislatures  composed  of 
a  few  men,  than  of  the  House  of  Representatives  who 
will  be  chosen  by  the  people."  The  requisite  term  of 
citizenship  was  scaled  down  by  successive  ballots 
from  twenty  to  nine  years. 

Article  I,  Section  3,  Clause  4. — The  Vice-President 
of  the  United  States  shall  be  President  of  the  Senate, 
but  shall  have  no  Vote,  unless  they  be  equally  divided. 

The  draft  of  the  Constitution  submitted  to  the  Con- 
vention on  August  6th,  provided  that  the  Senate  "shall 
choose  its  own  President."  After  nearly  three  months' 


128  OUR   CONSTITUTION 

debate  it  had  not  been  provided  that  the  people  or  the 
States  should  elect  a  Vice-President  and  thus  provide 
a  succession  for  the  Presidency  of  their  own  choice. 
Another  part  of  the  draft  read:  "The  executive  power 
of  the  United  States  shall  be  vested  in  the  President 
of  the  United  States,  and  his  title  shall  be  His  Excel- 
lency." Following  that  was  a  provision  that  a  vacancy 
in  the  Presidency  should  be  filled  by  the  President  of 
the  Senate,  but  only  until  "the  Legislature"  should 
elect  another  President.  Later,  when  the  question  of 
providing  a  council  for  the  President  was  discussed, 
Mr.  Ellsworth  supposed  that  the  President  of  the 
Senate  would  be  a  member  of  the  council,  but  nothing 
came  of  this.  In  a  further  effort  to  find  something 
for  the  Vice-President  to  do,  one  of  the  Pinckneys 
suggested  that  he  be  keeper  of  the  great  seal  of 
the  United  States!  As  late  as  August  27th  there  was 
objection  to  the  President  of  the  Senate  succeeding  to 
the  Presidency  in  case  of  a  vacancy,  and  Mr.  Madison 
suggested  that  the  council  (which  was  never  provided 
for)  appoint  the  successor  until  one  was  elected.  At 
last,  on  September  4th,  a  committee  report  provided 
for  the  election  of  a  Vice-President  who  should  be 
President  of  the  Senate.  It  is  curious  to  note,  in  view 
of  the  unimportance  of  the  Vice-President  in  the  actual 
administration  of  the  Government,  that  there  was 
strong  objection  to  giving  him  even  the  duty  of  pre- 
siding over  the  Senate.  Gerry  opposed  it  as  being 
"absolutely  improper"  in  view  of  the  intimacy  which 
would  surely  exist  between  him  and  the  President — 
this,  of  course,  with  a  view  of  more  completely  sepa- 
rating the  executive  from  the  legislative  branch  of  the 
Government.  Gouverneur  Morris  remarked  that  if 
such  intimacy  did  exist,  "the  Vice-President  would  be 


BEGINNING  THE  STRUCTURE  129 

the  first  heir-apparent  that  ever  loved  his  father." 
Randolph  opposed  making  the  Vice-President  Presi- 
dent of  the  Senate;  Williamson  thought  such  an  office 
as  Vice-President  was  not  wanted;  Mason  said  such  an 
officer  would  be  an  encroachment  on  the  rights  of  the 
Senate.  This  considerable  explanation  of  the  manner 
in  which  the  office  of  Vice-President  was  created 
solves  what  has  puzzled  many  observers:  why  the 
Vice-President  has  so  little  to  do.  The  office  was 
created  without  power,  and  merely  as  a  method  of 
providing  a  successor  to  the  Presidency,  who  had  been 
chosen  by  the  people. 

Article  I,  Section  3,  Clause  5. — The  Senate  shall 
choose  their  other  Officers,  and  also  a  President  pro 
tempore,  in  the  Absence  of  the  Vice  President,  or 
when  he  shall  exercise  the  Office  of  President  of  the 
United  States. 

It  is  the  custom  of  the  Vice-President  early  in  the 
first  session  of  the  Senate,  over  which  he  may  preside, 
to  absent  himself  in  order  that  the  Senate  may  elect 
a  President  pro  tempore.  The  latter,  being  a  Senator, 
has  a  vote  on  all  questions.  The  other  officers  of  the 
Senate  are  Secretary,  Chief  Clerk,  Executive  Clerk, 
Sergeant-at-Arms,  Doorkeeper  and  Chaplain. 

Article  I,  Section  3,  Clause  6.— The  Senate  shall 
have  the  sole  Power  to  try  all  Impeachments.  When 
sitting  for  that  Purpose,  they  shall  be  on  Oath  or 
Affirmation.  When  the  President  of  the  United  States 
is  tried,  tht  Chief  Justice  shall  preside:  And  no  Per 
son  shall  be  convicted  without  the  Concurrence  of  two 
thirds  of  the  Members  present. 

Article  1,  Section  3,  Clause  7. — Judgment  in  Cases 
of  Impeachment  shall  not  extend  further  than  to  re- 


130  OUR   CONSTITUTION 

moral  from  Office,  and  disqualification  to  hold  and 
enjoy  any  Office  of  honor,  Trust  or  Profit  under  the 
United  States:  but  the  Party  convicted  shall  neverthe- 
less be  liable  and  subject  to  Indictment,  Trial,  Judg- 
ment and  Punishment,  according  to  Law. 

We  have  seen  that  impeachments  may  be  brought 
only  by  the  House.  This  having  been  done,  that  is, 
the  House  having  formally  resolved  that  a  designated 
person  be  impeached,  it  appoints  a  committee  to  ac- 
quaint the  Senate  with  the  fact.  When  it  is  informed 
by  the  Senate  that  the  impeached  person  has  been 
served  with  proper  notice,  the  House  appoints  five 
managers  who  act  in  the  trial  as  the  People's  Attor- 
ney in  a  criminal  trial  in  a  court  of  justice.  The  Sen- 
ate sits  as  a  trial  court,  each  Senator  being  required 
to  take  oath  to  do  impartial  justice  according  to  the 
Constitution  and  the  law.  In  ordinary  cases  the  Vice- 
President,  or  President  pro  tempore,  presides,  but  if 
the  President  be  impeached  the  Chief  Justice  presides, 
as  the  Vice-President  is  personally  interested  in  the 
issue,  being  the  President's  successor,  if  the  President 
is  found  guilty.  The  accused  may  have  counsel  and 
examine  witnesses  under  oath.  The  trial  is  conducted 
with  open  doors,  but  the  deliberations  of  the  Senate, 
when  the  case  has  been  submitted,  is  behind  closed 
doors. 

The  only  President  of  the  United  States  impeached 
was  Andrew  Johnson.  He  was  elected  Vice-President 
in  1864  on  the  ticket  with  Lincoln,  when  the  latter 
was  elected  for  the  second  time.  Six  weeks  after  the 
inauguration  Lincoln  was  assassinated,  and  Johnson 
became  President.  Johnson  had  had  a  long  and  event- 
ful political  career,  during  which  be  had  striven  with 
all  of  his  power  for  the  great  principles  which  Lincoln 


BEGINNING  THE  STRUCTURE  131 

represented — a  fact  which,  it  seems,  is  frequently  over- 
looked by  writers  who  are  never  forgetful  that  in  his 
early  youth  Johnson  was  a  tailor's  apprentice.  Be- 
sides filling  a  number  of  elective  offices  in  his  adop- 
tive State,  East  Tennessee  (he  was  a  native  of  North 
Carolina),  he  served  terms  in  both  Houses  of  Congress, 
where  he  worked  hard  for  the  preservation  of  the 
Union,  and  was  noted  for  his  sturdy  opposition  to  ex- 
travagance in  appropriations.  When  he  became  Presi- 
dent he  followed  a  policy  tending  to  bring  about  a 
peaceful  and  speedy  reconstruction  of  the  governments 
of  the  States  lately  in  rebellion,  to  secure  their  full  re- 
admission  into  the  Union,  and  to  effect  reconciliation 
by  generous  amnesty  measures.  In  this  course  he  fol- 
lowed the  advice  of  his  Cabinet,  especially  that  of  Sec- 
retary of  State  Seward,  who  was  supposed  to  be  fa- 
miliar with  Lincoln's  intentions.  But  the  course  led 
him  into  conflict  with  Congress,  which  was  determined 
upon  a  policy  of  military  governments  in  the  States 
which  had  rebelled.  Johnson  vetoed  a  number  of  bills 
which  he  considered  to  be  too  harsh  towards  the 
Southern  States;  the  bills  were  promptly  passed  over 
the  vetoes;  Johnson  removed  his  Secretary  of  War, 
Stanton,  who  was  not  in  agreement  with  the  majority 
of  the  Cabinet  as  to  the  President's  course;  the  Senate 
declared  that  the  President  was  without  power  to  re- 
move Stanton,  and  the  House  resolved  to  impeach  him. 
The  articles  of  Impeachment  recited,  among  other 
offences,  that  the  President  had  expressed  contempt 
for  Congress  and  obstructed  execution  of  its  acts. 
The  main  parts  of  his  defense  in  his  trial  before  the 
Senate  was  that  he  had  acted  in  accordance  with  Lin- 
coln's plans,  and  always  with  the  approval  of  his 
Cabinet.  There  was  not  the  required  two-thirds  ma- 


132  ODE   CONSTITUTION 

jority  of  votes  to  find  him  guilty,  the  vote  being: 
guilty,  35;  not  guilty,  19.  Johnson  completed  his 
term,  his  last  important  official  act,  Christmas  Day, 
1868,  being  a  proclamation  of  amnesty  for  all  who 
had  been  in  the  secession. 

Article  I,  Section  4,  Clause  1. — The  Times,  Places 
and  Manner  of  holding  Elections  for  Senators  and 
Representatives,  shall  be  prescribed  in  each  State  by 
the  Legislature  thereof;  but  the  Congress  may  at  any 
time  by  Law  make  or  alter  such  Regulations,  except 
as  to  the  Places  of  choosing  Senators. 

This  specific  grant  to  Congress  to  alter  the  regula- 
tions of  States  in  respect  to  the  elections  of  members 
of  Congress  was  savagely  attacked  when  the  Constitu 
tion  was  submitted  to  ratification.  It  was  charged 
that  Congress  would  use  this  power  to  favor  a  class  of 
candidates  for  Congress,  such  as  landholders,  aristo- 
crats, merchants.  That  such  an  objection  was  felt  by 
many  was  owing  to  the  fact  that  they  did  not  yet  com- 
prehend the  great  purpose  of  the  Constitution:  to 
create  a  national  government  separate  from  and  in 
some  respect  above  the  State  governments.  This  hon- 
est objection  was  encouraged  by  those  who  understood 
the  purpose  of  the  Constitution,  yet  were  opposed  to  it. 
These  latter,  the  Antifederalists,  were  charged  by 
Hamilton  with  wanting  to  retain  sole  control  of  the 
election  of  members  of  Congress  that  they  might,  by 
refusing  to  elect  members,  disrupt  the  Union  by  leav- 
ing it  without  a  governing  body.  He  wrote  of  them  in 
the  Federalist:  "The  scheme  of  separate  confederacies, 
which  will  always  multiply  the  chances  of  ambition, 
will  be  a  never-failing  bait  to  all  such  influential  char- 
acters in  the  State  administrations  as  are  capable  of 


BEGINNING  THE  STRUCTURE          133 

preferring  their  own  emolument  and  advancement  to 
the  public  weal."  Hamilton  also  wrote:  "I  am  greatly 
mistaken  if  there  be  any  article  in  the  whole  plan  more 
defensible  than  this.  Its  propriety  rests  upon  the  evi- 
dence of  this  plain  proposition :  Every  government  ought 
to  contain  in  itself  the  means  of  its  own  preservation" 

It  was  many  years  before  Congress  regulated  elec- 
tions of  its  members.  The  manner  and  times  of  elect- 
ing members  of  the  House  were  at  first  varied ;  in  some 
States  the  choice  was  by  districts,  but  not  always  one, 
sometimes  more  from  a  district ;  in  others  all  the  Rep- 
resentatives were  elected  at  large,  on  what  was  known 
as  the  general  ticket  plan.  The  objection  to  this  was 
that  a  majority,  no  matter  how  small,  in  the  State, 
gave  to  one  party  all  the  Representatives,  while  in  the 
same  election  a  majority  of  the  State's  districts  might 
have  given  majorities  to  the  opposite  party.  To  secure 
a  more  just  representation  of  all  the  people,  Congress, 
in  1842,  enacted  that  States  entitled  to  more  than  one 
Representative  should  be  divided  into  contiguous  dis- 
tricts, which  a  later  law  provided  should  contain,  as 
nearly  as.  practicable,  equal  numbers  of  persons.  This 
law  gave  us  the  familiar  congressional  districts.  In 
1872,  Congress  made  the  Tuesday  next  after  the  first 
Monday  in  November  in  every  even  year  the  date  and 
day  for  holding  elections  for  Representatives,  but 
States  whose  constitutions  fixed  a  different  day  were 
later  exempted  from  the  operation  of  this  rule.  The 
division  of  a  State  into  districts  is  left  to  its  Legisla- 
ture, only  with  the  restriction  that  districts  shall  be 
contiguous,  and  equal  as  may  be  in  population.  The 
law  in  these  respects  has  not  imposed  a  very  strict 
sense  of  responsibility  on  legislatures,  and  some 
stringy,  though  legally  contiguous,  districts  are  to  be 


334  OUR  CONSTITUTION 

found,  and  some  with  half  the  population  of  others  in 
the  same  State.  When  a  new  apportionment  gives  a 
State  additional  Representatives,  the  State  elects  them 
at  large  until  the  State  is  redistricted. 

There  came  to  be  confusion  and  abuses  under  the 
provision  for  the  election  of  Senators,  and  in  1866, 
Congress  passed  a  law  regulating  the  time  and  man- 
ner for  such  elections.  The  time  is  the  second  Tues- 
day after  the  meeting  and  organization  of  the  Legisla- 
ture which  is  to  elect  a  Senator.  Then  each  House  of 
the  Legislature  separately  names  one  person  as  its 
choice.  The  next  day  the  two  Houses  meet  in  joint 
session,  and  if  it  appears  that  one  person  has  a  ma- 
jority of  all  the  votes  in  each  House  he  is  declared 
elected;  otherwise  daily  joint  sessions  are  held  until 
therein  a  choice  of  a  majority  shall  have  been  declared. 

Article  I,  Section  4,  Clause  2. — The  Congress  shall 
assemble  at  least  once  in  every  Year,  and  such  Meet- 
ing shall  be  on  the  first  Monday  in  December,  unless 
they  shall  by  Law  appoint  a  different  Day. 

A  member  of  the  House  elected  in  November  in  an 
even  year  does  not,  ordinarily,  take  his  seat  until  in 
the  December  of  the  following  year,  for  the  old  Con- 
gress, which  meets  in  its  second  or  short  session  in  the 
December  following  on  elections,  expires  on  the  4th  of 
the  next  March.  Unless  an  extra  session  intervenes, 
the  new  member  waits  for  thirteen  months  before  be- 
ginning to  represent  his  people.  This  awkward  con- 
dition prevents  a  political  revolution  at  the  polls  from 
accomplishing  its  purpose  until  the  public  opinion 
which  brought  it  about  has  so  abated,  or  been  per- 
verted by  mischievous  influences,  as  to  leave  the  mem- 
bers elected  to  represent  it  without  support,  even  with- 


BEGINNING  THE  STRUCTURE  135 

out  seeming  demand  for  the  measures  they  may  seek 
to  carry  out.  The  remedy  would  be  to  amend  the 
Constitution  so  that  a  newly  elected  House  of  Repre- 
sentatives would  meet  in  the  December  next  following 
its  election — in  a  month,  instead  of  thirteen  months 
after. 

Article  I,  Section  5,  Clause  1. — Each  House  shall 
be  the  Judge  of  the  Elections,  Returns  and  Qualifica- 
tions of  its  own  Members,  and  a  Majority  of  each  shall 
constitute  a  Quorum  to  do  Business;  but  a  smaller 
Number  may  adjourn  from  day  to  day,  and  may  be 
authorized  to  compel  the  Attendance  of  absent  Mem- 
bers, in  such  Manner,  and  under  such  Penalties  as 
each  House  may  provide. 

This  insures  the  independence  of  the  House  through 
the  power  to  refuse  admittance  of  illegally  elected 
members,  and  provides  a  means  to  unseat  a  legally 
elected  member  if  he  be  found  to  be  not  qualified,  and 
from  the  judgment  of  either  House  there  is  no  appeal. 
The  laws  and  the  rules  of  the  House  of  Representa- 
tives are  full  and  precise  concerning  proceedings  in 
the  case  of  a  contested  election,  or  the  protest  against 
the  eligibility  of  a  person  legally  elected  but  charged 
with  not  possessing  proper  qualifications.  The  man- 
ner in  which  Senators  are  elected  naturally  affords 
little  chance  for  contests  between  two  claimants;  but 
the  rights  of  a  single  claimant  have  frequently  been 
enquired  into. 

Less  than  a  quorum  may  adjourn  from  day  to  day: 
in  the  House  the  number  is  fixed  at  fifteen,  but  in  the 
Senate  no  number  is  fixed.  A  quorum  being  necessary 
to  do  business,  a  practice  grew  up  in  the  House  to 
delay  business — to  "filibuster" — by  abstaining  from 


136  OUR  CONSTITUTION 

voting,  so  that  no  quorum  appeared  on  the  roll-call. 
This  practice  is  now  defeated  by  a  rule  which  permits 
the  Speaker  to  appoint  tellers  who  may,  if  they  find 
present  enough  non-voting  members  to  constitute  a 
quorum  with  those  voting,  to  so  declare  to  the  Clerk. 
This  is  called  counting  a  quorum.  If  no  quorum  is 
discovered,  but  two  things  may  be  done:  adjourn,  or 
order  a  call  of  the  roll.  In  the  latter  case,  known  as 
a  call  of  the  House,  the  Sergeant-at-Arms  may  ar- 
rest and  bring  before  the  Speaker  all  members  absent 
and  not  excused.  In  the  Senate,  in  the  event  of  a 
"call,"  the  Sergeant-at-Arms  is  usually  directed  by 
the  presiding  officer  to  "request"  the  attendance  of 
absent  members. 

Article  I,  Section  5,  Clause  2. — Each  House  may 
determine  the  Rules  of  its  Proceedings,  punish  its 
Members  for  disorderly  Behavior,  and,  with  Concur- 
rence of  two  thirds,  expel  a  Member. 

In  the  Senate,  that  being  a  perpetual  body,  the  rules 
continue  in  force  until  changed.  The  House,  being  a 
renewed  body,  adopts  new  rules  at  the  beginning  of 
each  Congress  term,  every  two  years.  These  rules 
change  but  slowly,  however,  and  it  is  a  common  prac- 
tice to  readopt  the  rules  of  a  preceding  Congress. 
The  rules  of  the  House  and  Senate  differ  in  many  de- 
tails: the  greatest  difference  as  the  rules  affect  the 
proceedings  in  the  two  branches  is  that  in  the  House 
a  limit  is  placed  on  the  length  of  speeches,  which  can 
be  exceeded  only  by  special  permission ;  in  the  Senate, 
on  the  contrary,  a  special  rule  is  required  to  limit  the 
length  of  speeches.  In  the  House  the  rules  permit  a 
motion  for  the  previous  question,  or  closure  of  debate, 
for  the  purpose  of  an  immediate  vote  on  the  pending 


BEGINNING  THE  STRUCTURE  137 

question;  in  the  Senate  the  rules  do  not  permit  this 
motion,  but  a  special  rule  or  order  is  required  to  fix 
the  time  when  debate  must  cease  and  voting  begin 
on  a  question  not  disposed  of  under  routine  pro- 
ceeding. 

Article  I,  Section  5,  Clause  3. — Each  House  shall 
keep  a  Journal  of  its  Proceedings,  and  from  time  to 
time  publish  the  same,  excepting  such  Parts  as  may 
in  their  Judgment  require  Secrecy;  and  the  Yeas  and 
Nays  of  the  Members  of  either  House  on  any  question 
shall,  at  the  Desire  of  one  fifth  of  those  Present,  be 
entered  on  the  Journal. 

The  full  proceedings  of  each  day's  open  sessions  are 
published,  usually,  on  the  following  day  by  the  public 
printer  in  the  Congressional  Record.  The  Senate  at 
times  holds  what  are  called  executive  sessions  behind 
closed  doors,  usually  to  discuss  matters  of  foreign 
affairs  as  affected  by  treaties,  or  the  qualifications  of 
persons  named  by  the  President  for  important  offices. 
These  proceedings  are  usually  deemed  for  a  time  to 
require  secrecy. 

In  the  House,  the  voting  is  usually  viva  voce,  the 
decision,  aye  or  nay,  being  determined  by  the  Speaker 
judging  from  the  volume  of  sound.  If  such  decision  is 
questioned,  tellers  are  appointed,  between  whom  mem- 
bers pass  announcing  their  votes,  which  are  tallied  by 
the  Clerk,  but  not  individually  recorded.  This  is  a 
division.  On  roll-call  the  Clerk  notes  after  each  mem- 
ber's name  "Aye,"  "Nay,"  "absent,"  or  "not  voting," 
and  such  roll-call  is  made  part  of  the  record.  The  Con- 
stitution requires  a  roll-call  when  a  vote  is  taken  on  a 
measure  which  has  been  vetoed;  otherwise  it  is  usually 
demanded  to  put  members  on  record,  so  that  the  peo- 


138  OUR   CONSTITUTION 

pie  may  know  how  they  voted.  In  the  Senate,  the  vote 
by  tellers  is  not  a  practice;  voting  is  either  viva  voce, 
determined  by  the  presiding  officer,  or  by  roll-call. 

Article  I,  Section  5,  Clause  4. — Neither  House,  dur- 
ing the  Session  of  Congress,  shall,  without  the  Con- 
sent of  the  other,  adjourn  for  more  than  three  days, 
nor  to  any  other  Place  than  that  in  which  the  two 
Houses  shall  be  sitting. 

This  provision  prevents  unreasonable  recesses,  or 
the  selection  of  a  meeting  place  by  one  branch  for  the 
purpose  of  delaying  or  preventing  the  proper  conduct 
of  legislation.  Both  Houses  by  a  concurrent  resolu- 
tion may  adjourn  to  another  place,  and  for  a  longer 
period  than  three  days;  and  if  Congress  is  in  recess 
the  President  may  convene  them  at  another  than  the 
usual  place,  if  war,  epidemic  or  other  cause  should 
make  the  Capitol  an  undesirable  meeting  place. 

Article  I,  Section  6,  Clause  1. — The  Senators  and 
Representatives  shall  receive  a  Compensation  for  their 
Services,  to  be  ascertained  by  Law,  and  paid  out  of 
the  Treasury  of  the  United  States.  They  shall  in  all 
Cases,  except  Treason,  Felony  and  breach  of  the 
Peace,  be  privileged  from  Arrest  during  their  Attend- 
ance at  the  Session  of  their  respective  Houses,  and  in 
going  to  and  returning  from  the  same;  and  for  any 
Speech  or  Debate  in  either  House,  they  shall  not  be 
questioned  in  any  other  Place. 

The  question  of  paying  members  of  Congress  for 
their  services  was  divided  in  the  Convention  into  three 
parts:  Should  they  be  paid,  or  not  paid  at  all;  if 
paid,  what  sum;  should  they  be  paid  by  the  States  or 
nation?  This  was  further  involved  by  the  contention 


BEGINNING  THE  STRUCTURE  139 

that  even  if  Representatives  were  paid  the  Senators 
should  not  be,  since  they  would  represent  the  wealth 
of  the  country  and  not  require  pay;  would  scorn  any 
other  compensation  than  the  satisfaction  derived  from 
the  performance  of  a  public  duty.  The  motion  not  to 
provide  any  pay  was  defeated  by  a  narrow  margin. 
Then  the  question  of  who  should  be  the  paymaster  was 
argued  at  length.  The  States  Eight  members  wanted 
to  retain  such  influence  over  their  Representatives  as 
would  naturally  come  from  the  power  to  regulate  their 
pay.  Madison  pointed  out  that  State  pay  would  ban- 
ish stability  from  Congress,  as  States  might  pay  too 
little,  or  not  at  all,  and  members  would  not  serve;  or, 
if  the  States  paid,  their  Representatives  would  become 
mere  States'  agents,  not  national  guardians.  Hamil- 
ton gained  the  point  in  favor  of  national  pay  by  an 
epigram:  "Those  who  pay  are  the  masters  of  those 
who  are  paid."  When  it  was  decided  that  the  national 
treasury  was  to  be  the  paymaster  there  was  a  demand 
in  the  Convention  that  the  amount  of  pay  be  fixed  by 
the  Constitution,  for  some  feared  that  Congress  would 
abuse  the  power  if  their  wages  were  left  to  themselves 
to  fix.  But  it  was  so  left,  on  the  grounds  that  condi- 
tions of  living  and  travel  might  so  change  that  no  fair 
rate  of  pay  could  be  fixed.  From  the  first  Congress 
until  1815  the  pay  was  $6.00  a  day,  with  $6.00  allowed 
for  every  twenty  miles  traveled  in  going  to  and  from 
sessions.  From  1815  to  1817  it  was  $1,500  a  year. 
This  was  an  early  Grab  Bill,  which,  like  a  later  one, 
was  promptly  repealed  by  a  succeeding  Congress. 
From  1817  to  1855  it  was  $8.00,  with  a  like  sum  for 
every  twenty  miles  of  necessary  traveling.  From 
1855  to  1865  it  was  $3,000  a  year,  with  no  change  in 
the  travel  allowance;  from  1865  to  1871  it  was  $5,000 


140  OUK   CONSTITUTION 

a  year,  with  20  cents  a  mile  travel  allowance.  In  1871- 
1873  it  was  $7,500  a  year,  with  actual  traveling  ex- 
penses. This  increase  caused  the  notorious  "back-pay" 
scandal,  as  the  act  was  retroactive,  being  passed  on 
March  3,  1873,  and  gave  full  back  pay  at  the  increased 
figure  from  March  4,  1871.  The  bill  was  promptly  re- 
pealed by  the  succeeding  Congress,  and  since  1873  the 
pay  has  been  $5,000,  with  20  cents  a  mile  for  traveling 
expenses.  The  Speaker  of  the  House  and  President 
pro  tempore  of  the  Senate  receive  each  $8,000  a 
year. 

If  members  could  be  arrested,  except  for  the  grave 
charges  enumerated,  it  would  be  possible,  upon 
trumped-up  charges,  to  detain  enough  members  and 
thus  delay  or  defeat  legislation.  Freedom  of  debate 
requires  the  provision  that  "members  shall  not  be 
questioned  in  any  other  place"  for  what  they  may 
say  in  either  House. 

Article  I,  Section  6,  Clause  2. — No  Senator  or  Rep- 
resentative shall,  during  the  Time  for  which  he  was 
elected,  be  appointed  to  any  civil  Office  under  the 
Authority  of  the  United  States,  which  shall  have  been 
created,  or  the  Emoluments  whereof  shall  have  been 
encreased  during  such  time,  and  no  Person  holding 
any  Office  under  the  United  States,  shall  be  a  Member 
of  either  House  during  his  Continuance  in  Office. 

This  clause  serves  as  a  check  against  bargains  be- 
tween the  President  and  Members  of  Congress.  The 
former  might,  in  order  to  carry  some  measures,  aid  in 
creating  offices,  or  in  having  their  emoluments  in- 
creased, and  reward  corrupt  or  subservient  members 
with  such  offices.  The  clause  was  furthermore  de- 
signed to  aid  the  intention  of  the  Federal  Constitution 


BEGINNING  THE  STRUCTURE  141 

to  separate  the  legislative  from  the  executive  branch 
of  the  Government,  the  Convention  being  familiar  with 
the  evils  which  at  that  time  grew  out  of  the  intimate 
connection  between  the  British  ministry  and  Parlia- 
ment. 


THE  BUILDERS  TOIL  ON 

Article  I,  Section  7,  Clause  1. — All  Bills  for  raising 
Revenue  shall  originate  in  the  House  of  Representa- 
tives; But  the  Senate  may  propose  or  concur  with 
Amendments  as  on  other  Bills. 

DEBATES  in  the  Convention  show  that  this  clause 
was  one  of  the  many  concessions  made  in  furtherance 
of  one  of  the  great  compromises.  The  smaller  States 
had  secured  equal  representation  in  the  Senate  where, 
as  it  was  shown,  they  were  in  a  better  position  to  affect 
alliances  which  would  make  the  larger  States  power- 
less, than  that  the  reverse  should  happen.  The 
larger  States,  having  conceded  equal  representation 
in  one  branch,  were  alert  to  secure  themselves  against 
raids  on  the  Treasury,  and  demanded,  as  security,  that 
revenue-raising  measures  should  originate  in  the 
House,  where  larger  States  were  represented  in  pro- 
portion to  their  strength  and  importance — their  popu- 
lation. This  concession  was  granted  by  the  smaller 
States,  then  thrown  out,  and  not  restored  until  the 
smaller  States  had  gained  one  more  advantage  for  the 
branch  where  they  were  to  be  equally  represented: 
the  right  of  the  Senate  to  ratify  treaties  and  try  im- 
peachments. This  contention,  which  began  in  the 
Convention  of  1787,  has  been  continued  in  Congress 
for  more  than  a  century,  and  shows  no  present  signs 
of  abatement.  What  are  bills  for  raising  revenue? 

143 


THE   BUILDERS   TOIL   ON  143 

Not  a  bill  to  reduce  or  repeal  a  tax,  says  the  Senate, 
for  that  is  not  "raising"  a  revenue;  but,  answers  the 
House,  a  bill  to  reduce  or  repeal  a  tax  may  make 
necessary  the  creation  or  increase  of  another.  Hence 
it  is  involved  in  the  exercise  of  the  power  of  raising 
revenue.  That  is  to  say,  the  House  stoutly  maintains 
its  sole  right  to  originate  bills  directly  relating  to 
taxation,  whether  they  impose  or  remit  taxes.  When 
its  protests,  in  conference  between  committees  of  the 
House  and  Senate,  have  no  effect,  the  House  effectu- 
ally registers  its  protest  by  quietly  laying  on  the  table 
any  bill  originating  in  the  Senate,  and  passed  by  that 
body,  which,  in  the  opinion  of  the  House,  encroaches 
upon  its  rights  under  the  clause. 

Article  I,  Section  7,  Clause  2. — Every  Bill  which 
shall  have  passed  the  House  of  Representatives  and 
the  Senate,  shall,  before  it  becomes  a  Law,  be  pre- 
sented to  the  President  of  the  United  States;  If  he 
approve  he  shall  sign  it,  but  if  not  he  shall  return  it, 
with  his  Objections  to  that  House  in  which  it  shall 
have  originated,  who  shall  enter  the  Objections  at 
large  on  their  Journal,  and  proceed  to  reconsider  it. 
If  after  such  Reconsideration  two  thirds  of  that  House 
shall  agree  to  pass  the  Bill,  it  shall  be  sent,  together 
with  the  Objections,  to  the  other  House,  by  which  it 
shall  likewise  be  reconsidered,  and  if  approved  by  two 
thirds  of  that  House,  it  shall  become  a  Law.  But  in 
all  such  Cases  the  Votes  of  both  Houses  shall  be  de- 
termined by  yeas  and  Nays,  and  the  Names  of  the 
Persons  voting  for  and  against  the  Bill  shall  be  en- 
tered on  the  Journal  of  each  House  respectively.  If 
any  Bill  shall  not  be  returned  by  the  President  within 
ten  Days  (Sundays  excepted)  after  it  shall  have  been 
presented  to  him,  the  Same  shall  be  a  Law,  in  like 
Manner  as  if  he  had  signed  it,  unless  the  Congress 
by  their  Adjournment  prevent  its  Return,  in  whioh 
case  it  shall  not  be  a  Law, 


144  OUR   CONSTITUTION 

3. — Every  Order,  Resolution,  or  Vote  to  which  the 
Concurrence  of  the  Senate  and  House  of  Representa- 
tives may  be  necessary  (except  on  a  question  of  Ad- 
journment) shall  be  presented  to  the  President  of  the 
United  States;  and  before  the  Same  shall  take  Effect, 
shall  be  approved  by  him,  or  being  disapproved  by 
him,  shall  be  repassed  by  two  thirds  of  the  Senate  and 
House  of  Representatives,  according  to  the  Rules  and 
Limitations  prescribed  in  the  Case  of  a  Bill. 

In  the  Convention,  much  of  the  debate  on  the  ques- 
tion of  the  veto  power  was  based  upon  the  assumption 
that  the  President  was  to  be  advised  by  a  council,  for 
whose  institution  various  ideas  prevailed,  the  favor- 
ite one  being  that  the  members  of  the  Supreme  Court, 
or  some  of  them,  would  act  in  the  capacity  of  advisers 
to  the  President.  This  was  the  plan  of  the  Randolph 
resolution  upon  which  the  veto  clause  was  based.  But 
this  gave  to  the  President  and  "a  convenient  number 
of  the  national  judiciary"  power  to  veto  not  only  legis- 
lation by  Congress,  "but  all  acts  of  the  State  legisla- 
tures." This  centralized  the  government  beyond  the 
demand  of  any  but  a  few  extreme  Federalists,  and 
had  but  slight  support,  so  far  as  it  gave  any  veto  on 
State  legislatures.  The  belief  that  the  President 
should  be  advised  by  a  council  in  matters  of  legisla- 
tion submitted  to  him,  was  more  general  in  the  Con- 
vention. It  must  be  remembered  that  nothing  like  the 
actual  Cabinet  was  provided  for  by  the  Constitution, 
and  what  many  of  the  wisest  men  in  the  Convention 
contended  for — a  council  of  advice  for  the  President — 
has  grown  up  through  laws  and  customs,  and  no  doubt 
provides  a  better  check  on  unnecessary  or  unwise 
legislation  than  would  have  resulted  had  the  "coun- 
cil" consisted  of  Supreme  Court  justices  only. 


THE   BUILDERS    TOIL  ON  145 

Hamilton  wanted  to  give  the  President  absolute  veto 
power,  but  not  a  State  voted  in  favor  of  this.  Wilson 
and  Madison  wished  the  President  checked  by  the 
National  Judiciary,  and  the  latter's  powerful  argu- 
ment would,  it  seems  probable,  have  carried  the  point, 
had  it  not  been  for  the  determination  in  the  Conven- 
tion to  separate  the  three  great  departments  of 
government,  Legislative,  Executive  and  Judicial, 
as  completely  as  possible.  As  Gorham  argued: 
"The  judges  would  outnumber  the  executive,  they 
could  take  the  whole  power  out  of  his  hands  and 
sacrifice  him." 

Besides  the  method  of  veto,  by  returning  a  bill  with- 
out his  signature,  and  giving  his  reasons  for  disap- 
proving it,  the  President  sometimes  kills  a  bill  abso- 
lutely by  neither  approving  or  disapproving  it,  but 
letting  it  lie  on  his  desk  until  Congress  adjourns,  if  it 
adjourns  within  ten  days  after  submitting  the  bill  to 
him.  This  is  called  a  pocket  veto.  If  the  President 
keep  a  bill  ten  days  (Sundays  not  included)  while 
Congress  is  in  session,  the  bill  becomes  a  law  the  same 
as  if  he  has  signed  it,  and  thus  the  Income  Tax  pro- 
vision of  the  1894  Tariff  Bill  became  a  law  under 
President  Cleveland,  but,  as  we  shall  presently  see, 
was  negatived  by  the  Supreme  Court.  The  veto  power 
has  much  more  often  been  exercised  to  prevent  legis- 
lation deemed  unnecessary  or  inexpedient  than  be- 
cause it  has  been  deemed  unconstitutional. 

The  second  of  the  two  clauses  quoted  next  above 
relates  to  Orders  and  Resolutions  as  distinguished 
from  Bills.  Hinsdale  describes  a  Bill  as  "a  form  or 
draft  of  law  presented  to  a  legislative  body,  but  not 
yet  enacted  into  law."  Jefferson  defines  Orders  and 
Resolutions:  "When  the  House  commands  it  is  by 


1-iG  OUR    CONSTITUTION 

order.    Facts,  principles,  and  their  own  opinions  and 
purposes  are  expressed  in  the  form  of  a  resolution." 

Article  I,  Section  8,  Clause  1. — The  Congress  shall 
have  Power  To  lay  and  collect  Taxes,  Duties,  Imposts 
and  Excises,  to  pay  t1  e  Debts  and  provide  for  the 
common  Defence  and  general  Welfare  of  the  United 
States;  but  all  Duties,  Imposts  and  Excises  shall  be 
uniform  throughout  the  United  States. 

Here  is  perhaps  the  most  important  grant  of  legis- 
lative power  to  Congress,  the  lack  of  which  power  re- 
duced the  Confederation  to  governmental  irnpotency. 
There  was  no  member  of  the  Convention  who  was  not 
keenly  alive  to  the  necessity  of  making  this  grant 
large  yet  definite,  but  in  spite  of  this  intention,  na- 
tional political  parties  have  campaigned  on  an  issue 
involved  in  the  interpretation  of  the  clause,  and 
learned  jurists  have  been  opposed  in  their  understand- 
ing of  it.  The  issue  may  be  thus  stated:  Shall  "the 
Congress  have  power  to  lay  and  collect  taxes"  in 
order  to  "provide  for  the  common  defence  and  general 
welfare";  or  shall  Congress  "have  power  to  lay  and 
collect  taxes,"  and  further  have  power  to  "provide 
for  the  common  defence  and  general  welfare"?  If  the 
first  interpretation  is  correct,  then  when  Congress  has 
levied  and  collected  such  taxes  as  are  required  to  pro- 
vide for  the  common  defence  and  welfare  of  the  coun- 
try it  has  exhausted  the  scope  of  its  taxing  powers:  it 
can  collect  only  such  taxes  as  are  required  for  the 
proper  conduct  of  the  government  in  peace  and  war. 
If  the  latter  interpretation  is  correct,  Congress  may 
lay  and  collect  such  taxes  as  have  just  been  described, 
and  may  further  lay  taxes  to  assist  persons  engaged  in 
certain  business  pursuits:  it  may  collect  taxes  for  the 


THE   BUILDERS   TOIL   ON  147 

purpose  of  the  proper  conduct  of  the  government  in 
peace  and  war,  and  lay  a  further  tax  to  aid  those 
whose  business  pursuits  will  be  made  more  profitable 
thereby.  Those  who  hold  that  the  Government  is  jus- 
tified in  laying  a  tax  for  a  person  or  corporation  to 
collect,  assert  that  if  a  steel  corporation,  for  example, 
sells  a  million  tons  of  steel  to  Americans  for  ten  mil- 
lion dollars  more  than  Americans  could  buy  that  steel 
from  foreigners — if  foreign  steel  were  untaxed — those 
ten  million  dollars  are  added  to  the  wages  of  the  cor- 
poration's workmen.  The  opposing  contention  is  that 
those  $10,000,000  are  added  to  the  corporation's  divi- 
dends paid  on  certificates  of  stock  issued  for  the 
purpose  of  receiving  such  dividends;  that  if  the  cor- 
poration issued  only  such  certificates  of  stock  as  its 
investments  honestly  called  for,  it  could  pay  a  proper 
dividend  thereon,  and  pay  the  customary  wages  to  its 
workmen  without  collecting  a  tax  for  that  purpose. 
Those  who  favor  the  first  contention  are  said  to  favor 
a  "tariff  for  protection,"  and  the  advocates  of  the  sec- 
ond contention  are  said  to  favor  a  "tariff  for  revenue 
only."  The  question,  after  all,  is  not  one  of  Constitu- 
tional construction  but  of  legislative  policy.  The 
people  send  to  Congress  agents  to  legislate  in  accord- 
ance with  the  views  of  the  majority,  and  it  is  always 
within  the  power  of  a  majority  of  the  people  to  have 
laws  enacted  to  carry  out  the  "protection"  or  "revenue 
only"  principle,  without  the  need  of  a  Constitutional 
Amendment  to  further  their  wishes. 

As  we  have  already  seen,  direct  taxes  have  been 
laid  but  seldom  (five  times:  1798,  1813,  1815  and  in 
1861).  The  Government  is  supported  chiefly  by  two 
sources  of  indirect  taxes,  those  levied  on  imported 
articles,  which  tax  is  commonly  called  customs  duties, 


148  OUR   CONSTITUTION 

and  those  levied  on  articles  of  domestic  manufacture, 
and  these  are  the  taxes  called  in  the  clause  "excises," 
but  more  commonly  called  "internal  revenue"  taxes. 
These  have  at  various  times  been  levied  on  a  great  va- 
riety of  articles,  but  now  most  of  them  are  derived 
from  taxes  on  whiskey,  beer,  and  tobacco  in  its  various 
forms. 

A  tax  on  incomes  was  laid  to  help  meet  the  cost  of 
the  Civil  War,  and  expired  by  limitation  in  1872.  In 
1894  Congress  laid  a  tax  of  2  per  cent,  on  all  incomes 
over  $4,000,  which  was  made  to  apply  to  corporations 
as  well  as  individuals.  This  tax  was  provided  for  in 
a  Bill  which,  among  other  tax  provisions,  readjusted 
the  customs  revenue  tariff,  and  was  allowed  to  be- 
come a  law  by  President  Cleveland  without  his  sig- 
nature, because  many  amendments  made  to  the  tariff 
feature  of  the  Bill  at  a  late  day  in  its  consideration, 
did  not  meet  with  his  approval.  The  income  tax  fea- 
ture of  the  Bill  was  declared  unconstitutional  by  the 
Supreme  Court — by  a  vote  of  five  to  four — on  the 
ground  that  it  was  a  direct  tax,  and  should  therefore 
have  been  apportioned  among  the  States  instead  of 
being  made  general.  The  following  17  Clauses  of  this 
section  continue  to  enumerate  powers  of  Congress: 

Article  I,  Section  8,  Clause  2. — To  borrow  Money  on 
the  credit  of  the  United  States; 

Extraordinary  expenses,  such  as  are  caused  by  war, 
cannot  be  met  by  taxes,  at  least  by  such  taxes  as  serve 
to  meet  only  ordinary  expenses,  and  to  meet  them  the 
Government  must  borrow  on  its  credit.  The  United 
States  has  borrowed  vast  sums  on  its  promises  to  pay 
specified  sums  at  specified  times,  with  a  specified  rate 


THE   BUILDERS    TOIL   OX  149 

of  interest.  These  promises  are  the  United  States 
bonds.  But  during  the  Civil  War  the  Government  also 
issued  |450,000,000  of  its  bills  of  credit,  commonly 
called  paper  money,  which  were  made  legal  tender  by 
law ;  that  is,  a  creditor  of  the  Government  was  obliged 
to  accept  them  if  tendered,  and  so  were  all  persons  to 
whom  they  were  tendered  in  ''payment  of  all  debts, 
public  and  private,"  except  duties  on  imports  and  in- 
terest on  United  States  bonds.  The  two  exceptions 
were  made  in  order  that  the  Government  could  take 
in  gold  (from  duties  on  imports),  and  maintain  the 
credit  and  price  of  its  bonds  by  paying  their  interest 
in  the  gold  thus  secured. 

That  the  Government  could  thus  create  a  legal  ten- 
der; that  is,  force  a  loan  and  suspend  specie  payment, 
was  vigorously  contested,  but  the  constitutionality  of 
the  law  was  finally  upheld  by  the  Supreme  Court.  In 
its  decision,  from  which  there  was  a  minority  dissent, 
the  court  said:  "The  exercise  of  this  power  not  being 
prohibited  to  Congress  by  the  Constitution,  it  is  in- 
cluded in  the  power  expressly  granted  by  the  Consti- 
tution to  borrow  money  on  the  credit  of  the  United 
States." 

So  it  becomes  interesting  to  return  to  the  Conven- 
tion and  listen  to  the  debates  of  August  16th,  to  learn 
how  very  nearly  an  express  prohibition  was  made.  The 
clause  in  the  draft  read  that  Congress  should  have 
the  power  "to  borrow  money  and  emit  bills  on  the  credit 
of  the  United  States."  The  three  words  which  are 
here  italicized  would  have  been  a  specific  grant  of 
power  to  issue  "paper  money,"  and  they  were  attacked 
promptly  when  the  draft  clause  was  reached  for  con- 
sideration, on  August  16th.  Gouverneur  Morris  moved 
to  strike  out  those  three  words,  saying:  "If  the  United 


150  OUR   CONSTITUTION 

States  had  credit,  such  bills  would  be  unnecessary:  if 
they  had  not,"  such  bills  would  be  "unjust  and  use- 
less." Madison  foresaw  what  might  cause  trouble  and 
sought  to  prevent  it.  "Will  it  not  be  sufficient,"  he 
asked,  "to  prohibit  the  making  them  a  tender?" 
G.  Morris  said  that  the  moneyed  interest  of  the  coun- 
try would  oppose  the  ratification  of  the  Constitution  if 
paper  money  be  not  prohibited.  Gorham  wanted  the 
words  stricken  out,  for  if  they  remained  they  might 
suggest  paper  money  to  some  future  Congress.  Mason 
thought  Congress  would  not  have  power  to  issue  paper 
money  unless  it  was  expressed.  "Though  he  had  a 
mortal  hatred  of  paper  money,  yet  as  he  could  not 
foresee  all  emergencies,  he  was  unwilling  to  tie  the 
hands"  of  Congress  by  an  express  prohibition.  Mer- 
cer added  a  word  of  caution :  Do  not  arouse  the  oppo- 
sition of  the  friends  of  paper  money  by  an  express  pro- 
hibition. But  Ellsworth  "thought  this  a  favorable 
moment  to  shut  and  bar  the  door  against  paper  money. 
It  can  in  no  case  be  necessary.  Give  the  Government 
credit  and  other  resources  will  offer."  Randolph 
agreed  with  Mason.  "Notwithstanding  his  antipathy 
to  paper  money,  he  could  not  foresee  all  the  occa- 
sions which  might  arise."  Wilson,  afterwards  a  Jus- 
tice of  the  United  States  Supreme  Court,  wished  the 
expressed  power  to  be  taken  from  the  clause.  "It  will 
have  a  most  salutary  influence  on  the  credit  of  the 
United  States  to  remove  the  possibility  of  paper 
money,"  he  said.  Bead  thought  the  words,  "and  emit 
bills,"  "if  not  struck  out,  would  be  as  alarming  as 
the  mark  of  the  beast  in  Revelations."  Langdon  said 
he  would  rather  reject  the  whole  plan  than  retain  the 
three  words;  and  Madison,  in  explaining  why  he  voted 
with  his  State  to  strike  out — every  State  so  voted — 


THE   BUILDERS    TOIL   OX  151 

adds  to  his  account  of  the  debate,  that  he  "became 
satisfied  that  striking  out  the  words  *  *  *  cut  off 
the  pretext  for  a  paper  currency,  and  particularly  for 
making  the  bills  a  tender  either  for  public  or  private 
debts." 

In  view  of  this  debate  it  need  not  excite  wonder  that 
Justice  Field  did  not  agree  with  the  opinion  of  the 
court  declaring  the  Legal  Tender  Act  constitutional; 
nor  that  he  should  have  said  in  his  dissenting  opinion : 
"If  there  be  anything  in  the  history  of  the  Constitu- 
tion which  can  be  established  with  moral  certainty,  it 
is  that  the  framers  of  that  instrument  intended  to  pro- 
hibit the  issue  of  legal  tender  notes  both  by  general 
government  and  by  the  States,  and  thus  prevent  in- 
terference with  the  contracts  of  private  parties." 

Article  I,  Section  8,  Clause  3. — To  regulate  Com- 
merce with  foreign  Nations,  and  among  the  Several 
States,  and  with  the  Indian  Tribes; 

We  have  seen  the  Convention's  work  facilitated  by 
two  great  compromises:  one  establishing  proportional 
representation  in  the  House,  and  equal  representation 
of  the  States  in  the  Senate;  a  second,  which  provided 
for  the  fractional  counting  of  slaves  in  enumerating 
persons  entitled  to  representation  in  the  House;  and 
now  the  last  of  the  three  gave  to  Congress  the  power, 
by  a  majority  vote,  to  regulate  commerce,  foreign  and 
interstate.  This  right  was  gained  against  the  original 
opposition  of  the  three  most  Southern  States,  as  a 
concession  in  return  for  the  right  to  import  slaves  for 
a  limited  period  and  the  recognition  of  the  institution 
of  slavery. 

South  Carolina  and  Georgia  were  most  insistent  in 
demanding  non-interference  with  slavery.  The  indus- 


152  OUR   CONSTITUTION 

tries  of  those  States,  they  believed,  depended  upon 
slave  labor,  and  would  be  ruined  without  it.  At  the 
same  time  they  were  fearful  of  a  proposal  to  give 
Congress  power  to  regulate  commerce;  professing  to 
see  a  danger  that  the  New  England  States,  by  securing 
favorable  navigation  laws,  would  control  the  sea- 
carrying  trade,  and  exact  unfair  tolls  for  taking  the 
products  of  the  South  to  European  and  New  England 
markets.  At  first  they  conceded  a  little;  they  would 
give  Congress  power  to  regulate  commerce  by  a  two- 
thirds  vote;  New  England  conceded  a  little  of  its  de- 
mand that  the  slave  trade  be  at  once  ended — they 
would  extend  the  period  for  importing  slaves  ten 
years.  Here  was  a  fair  field  for  compromise,  and  a 
committee  of  one  from  each  State  was  appointed  to 
bring  in  a  measure.  But  the  compromise  offer  was 
not  easily  adopted,  for  the  South  was  far  from  being 
of  one  mind  on  the  question.  There  was  no  more  de- 
termined abolitionist  in  the  Convention  than  Mason  of 
Virginia.  His  language  reminds  one  of  that  with 
which  the  nation  became  familiar  seventy  years  later 
in  the  speeches  of  prominent  abolitionists  of  the 
North.  Virginia  and  Maryland  had  already  forbidden 
the  importation  of  slaves,  and  referring  to  this, 
C.  Pinckney  said,  on  August  21st:  "South  Carolina 
can  never  receive  the  plan  if  it  prohibits  the  slave 
trade.  *  *  *  If  the  States  be  left  at  liberty  on  this 
subject,  South  Carolina  may,  perhaps,  by  degrees,  do 
of  herself  what  is  wished,  as  Virginia  and  Maryland 
have  already  done."  The  next  morning,  Sherman 
voiced  the  views  of  New  England:  "He  disapproved 
of  the  slave  trade;  yet  as  the  States  were  now  pos- 
sessed of  the  right  to  import  slaves,  as  the  public  good 
did  not  require  that  it  be  taken  from  them,  and  as  it 


THE  BUILDERS   TOIL  ON  153 

was  expedient  to  have  as  few  objections  as  possible  to 
the  proposed  scheme  of  government,  he  thought  it  best 
to  leave  the  matter  as  we  find  it." 

New  England  was  to  let  slavery  alone  if  the  Caro- 
liuas  and  Georgia  would  let  Congress  regulate  com- 
merce, interstate  and  foreign. 

Mason  was  doubly  enraged,  for  he  was  against  na- 
tional regulation  of  commerce,  and  opposed  to  slavery, 
and  he  now  rose,  in  answer  to  Sherman,  and  delivered 
one  of  the  most  significant  speeches  heard  in  the  Con- 
vention— the  more  significant  coming  from  a  delegate 
from  a  State  owning  more  than  a  third  of  all  the  slaves 
in  the  United  States  (the  total  slave  population  in 
1790  was  697,897,  of  whom  293,427  were  enumerated  in 
Virginia).  Mason  exclaimed:  "This  infernal  traffic 
originated  in  the  avarice  of  British  merchants.  The 
British  government  constantly  checked  the  attempts 
of  Virginia  to  put  a  stop  to  it.  The  present  question 
concerns  not  the  importing  States,  but  the  whole 
Union.  *  *  *  Slavery  discourages  arts  and  manu- 
factures. The  poor  despise  labor  when  performed  by 
slaves.  They  prevent  the  immigration  of  whites,  who 
really  enrich  and  strengthen  a  country.  They  produce 
the  most  pernicious  effects  upon  manners.  Every  mas- 
ter of  slaves  is  born  a  petty  tyrant.  They  bring  the 
judgment  of  heaven  upon  a  country.  As  nations  can- 
not be  rewarded  or  punished  in  the  next  world  they 
must  be  in  this.  By  an  inevitable  chain  of  causes  and 
effects,  Providence  punishes  national  sins  by  national 
calamities." 

But  a  warning  of  awful  calamity  to  come  was  not 
as  effective  on  the  majority  as  was  the  desire  to  frame 
an  instrument  of  government  competent  to  establish 
a  national  government — and  which  could  be  ratified. 


354  OUR    CONSTITUTION 

The  compromise  was  completed  by  extending  the  slave 
importation  period  to  twenty  years,  and  placing  a  $10 
head  tax  on  all  slaves  imported — and  Mason  refused 
to  sign  the  Constitution.  But  it  was  compromise  or 
no  ratification,  and  the  majority  were  working  with 
patriotic  zeal  to  secure  the  blessings  of  a  strong  and 
united  government. 

The  clause  we  have  reached,  empowering  Congress 
to  regulate  commerce,  has  been  the  authority  of  much 
legislation  of  great  importance.  Under  this  provision 
the  Interstate  Commerce  Commission  was  created  and 
laws  enacted  for  its  purpose.  These  were  designed  "to 
prevent  unfair  discriminations  in  the  transportation 
facilities  offered  to  persons  and  places;  to  prevent  un- 
fair discriminations  in  passenger  fares  as  between  dif- 
ferent places,  and  in  freight  charges,  either  in  the 
form  of  special  rates  or  in  the  form  of  rebates."  An- 
other important  law  passed  by  power  of  this  clause  is 
that  known  as  the  Anti-Trust  Act.  It  declares  "every 
contract,  combination  in  the  form  of  trust  or  other- 
wise, or  conspiracy,  in  restraint  of  trade  or  commerce 
among  the  several  States,  or  with  foreign  nations,'1 
illegal.  Persons  convicted  under  this  law  may  be  pun- 
ished by  heavy  fines,  or  by  imprisonment,  or  both.  The 
enumerated  powers  of  Congress  continue: 

Article  I,  Section  8,  Clause  4. — To  establish  an  uni- 
form Rule  of  Naturalization,  and  uniform  Laws  on  the 
subject  of  Bankruptcies  throughout  the  United  States ; 

5. — To  coin  Money,  regulate  the  Value  thereof,  and 
of  foreign  Coin,  and  fix  the  Standard  of  Weights  and 
Measures; 

G. — To  provide  for  the  Punishment  of  counterfeiting 
the  Securities  and  current  Coin  of  the  United  States; 


THE   BUILDERS   TOIL   ON  155 

7. — To  establish  Post  Offices  and  post  Roads; 

8. — To  promote  the  Progress  of  Science  and  useful 
Arts,  by  securing  for  limited  Times  to  Authors  and 
Inventors  the  exclusive  Right  to  their  respective  Writ- 
ings and  Discoveries. 

Our  naturalization  laws  are  for  the  purpose  of  con- 
ferring upon  a  foreigner  the  rights,  privileges  and  du- 
ties of  a  citizen ;  that  is,  one  who  is  bound  in  allegiance 
to  the  United  States  and  entitled  to  its  protection. 
The  privilege  of  naturalization  is  denied  by  law  to 
Chinese  and  extended  by  law  to  African  negroes.  An 
alien,  to  become  a  citizen,  must,  two  years  before  he 
becomes  such,  appear  before  a  court  of  necessary  juris- 
diction and  declare  his  intention  to  become  a  citizen. 
A  certificate,  given  to  him  by  the  court,  states  that  he 
has  complied  with  the  preliminary  requirements  of 
the  law.  This  is  commonly  referred  to  as  an  appli- 
cant's "first  papers."  At  the  expiration  of  two  years, 
having  proven  by  witnesses  that  he  has  resided  in  the 
United  States  five  years,  and  in  the  State  or  Territory 
where  he  now  appears  at  least  one  year,  and  satisfy- 
ing the  court  as  to  his  good  character,  the  applicant 
renounces  allegiance  to  all  other  nations  and  rulers, 
takes  oath  to  support  the  Constitution,  and  is  given  a 
certificate  of  naturalization.  States  cannot  naturalize 
foreigners — that  is,  make  them  citizens  of  the  United 
States — but  they  may,  and  some  do,  confer  on  foreign- 
ers political  rights  within  the  State,  such  as  the  right 
to  vote  and  hold  land.  By  such  liberal  laws,  States 
have  attracted  immigration. 

Congress  has  four  times  passed  and  three  times  re- 
pealed bankruptcy  laws.  The  one  now  in  operation 
(1906)  was  passed  in  1898.  These  laws  are  to  enable 
courts,  or  persons  appointed  to  represent  courts,  to 


156  OUR   CONSTITUTION 

adjust  and  settle  the  affairs  of  debtors  who  have  at- 
tempted to  secure  or  favor  one  or  more  creditors  at 
the  expense  of  others;  or  of  a  debtor  who  voluntarily 
places  his  affairs  in  the  administration  of  a  bankruptcy 
.  court.  The  objects  of  the  law  are  to  protect  creditors 
and  secure  their  equal  rights,  and  to  relieve  from  his 
obligations  an  honest  debtor  who  has,  through  the 
operation  of  the  law,  made  payment  of  so  much  of  his 
debts  as  his  assets  permitted. 

Under  its  power  to  coin  money  and  regulate  its 
value,  Congress  has  passed  many  laws  which  have 
been  upset  by  the  operation  of  natural  laws  which 
have  frequently  altered  the  relative  value  of  gold  and 
silver.  If,  through  the  increased  or  cheapened  produc- 
tion of,  say,  silver,  its  marketable  value  falls  below 
its  legal  ratio  value  as  compared  with  gold,  then  gold 
coin  rises  above  its  face  value,  and  no  law  can  prevent 
private  owners  from  exporting  gold  coin  for  the  profit 
to  be  derived  from  its  sale  as  bullion.  The  reverse  of 
this  might  be — indeed,  has  been — the  case.  After  the 
discovery  of  gold  in  California  and  Australia,  when  the 
legal  ratio  in  the  United  States  was  practically  1  to  16 
(15.988),  the  ratio  in  European  mints  was  1  to  15£,  and 
United  States  silver  coin  was  shipped  abroad  for  the 
profit  represented  by  the  difference  in  these  ratios. 
Since  1893  the  government  has  ceased  purchasing  sil- 
ver for  coining  into  dollars,  but  that  coin  is  a  legal 
tender,  and  is  represented  in  circulation,  largely,  by 
bills  called  silver  certificates,  which  are  redeemable  in 
gold  or  silver  like  any  other  legal  tender.  Any  per- 
son may  deposit  gold  in  a  United  States  mint  and 
have  it  coined  by  the  payment  of  the  value  of  the  cop- 
per alloy  used,  but  silver  is  no  longer  coined  on  private 
account. 


THE   BUILDERS   TOIL  ON  157 

Instead  of  fixing  the  standard  of  all  weights  and 
measures,  Congress  has  let  use  and  tradition  do  much 
of  the  fixing.  Congress  has  authorized  the  metric 
system,  but  never  required  its  use,  although  some 
popular  effort  has  been  made  to  establish  the  use  of 
the  system  by  law. 

It  is  equally  "counterfeiting"  to  manufacture  forged 
coin  or  securities  of  the  United  States,  to  put  such  into 
circulation  or  to  have  such  in  possession  with  the 
purpose  of  putting  them  into  circulation.  A  "secur- 
ity" is  anything  of  that  character  that  is  compre- 
hended in  the  wide  scope  between  a  stamped  envelope 
and  a  government  bond.  The  offenses  here  mentioned, 
and  treason  and  piracy  are  the  only  ones  which  Con- 
gress is  expressly  empowered  to  punish,  but  the  Fed- 
eral laws  provide  for  the  punishment  of  many  crimes, 
under  the  assumption  that  the  power  to  regulate  or 
manage  includes  the  power  to  punish  criminal  inter- 
ference with  the  exercise  of  that  power. 

In  the  Articles  of  Confederation,  Congress  was 
granted  sole  right  of  "establishing  and  regulating  post- 
offices  from  one  State  to  another,"  but  as  in  the  case  of 
many  other  grants  of  power,  little  ever  came  of  it. 
Under  laws  based  on  the  clause  in  the  Constitution, 
our  postal  service  has  extended  until  now  there  are 
but  relatively  few  inhabitants  of  the  whole  country, 
even  in  the  most  remote  and  least  settled  districts, 
who  are  not  visited  daily  by  the  free  delivery  postman. 
The  President  appoints  postmasters  who  receive  a 
salary  of  $1,000  or  more  a  year,  and  all  others  are  ap- 
pointed by  the  Postmaster-General,  and  receive,  in- 
stead of  a  salary,  a  percentage  on  the  receipts  of  their 
offices. 

Copyright  is  the  exclusive  right  of  reproducing  by 


358  OUR  CONSTITUTION 

printing  or  otherwise,  the  language  and  form  of  a  lit- 
erary or  artistic  production.  A  patent  is  a  grant  by 
the  Government  to  secure  to  an  inventor  the  exclusive 
right  to  make  and  sell,  for  a  specified  period,  the  thing 
invented  or  discovered  by  him.  Copyright  runs  for 
28  years,  but  an  extension  may  be  had  for  an  addi- 
tional 14  years.  Patent  rights,  which  run  for  17  years, 
are  obtained  through  a  bureau  of  the  Department  of 
the  Interior,  under  a  Commissioner  of  Patents.  Copy- 
rights are  obtained  through  the  Librarian  of  Congress. 
So  helpful  to  inventors  have  been  the  United  States 
patent  laws  that  a  competent  authority  estimates 
"that  at  present  more  than  two-fifths  of  the  world's 
important  inventions  originate  in  the  United  States." 
He  adds:  "No  feature  of  our  Federal  system  has 
proven  of  greater  economic  importance  than  the  patent 
system." 

The  next  clause  in  the  section  we  are  covering  gives 
Congress  power  "to  constitute  tribunals  inferior  to  the 
Supreme  Court,"  but  as  this  subject  is  included  in  a 
later  section,  containing  provision  for  both  Supreme 
and  inferior  courts,  it  can  better  be  discussed  when 
the  latter  provision  is  reached. 

Continuing  the  specific  grants  to  Congress  we  find 
it  empowered: 

Article  I,  Section  8,  Clause  10. — To  define  and  pun- 
ish Piracies  and  Felonies  committed  on  the  high  Seas, 
and  Offenses  against  the  Law  of  Nations; 

Robbery  or  forcible  depredation  upon  the  high  sea 
is  piracy,  and  so,  too,  under  the  United  States  law,  is 
the  trading  by  sea  in  slaves,  and  the  punishment  for 
these  offenses  is  death.  The  laws  relating  to  the  of- 
fenses named  in  the  clause  are  spoken  of  as  the  law 


THE    BUILDERS    TOIL   ON  159 

of  nations,  which  is  "a  code  of  rules  and  precedents 
governing  nations  in  their  relations  with  one  another.'' 

11.— To  declare  War,  grant  Letters  of  Marque  and 
Reprisal,  and  make  Rules  concerning  Captures  on 
Land  and  Water; 

It  was  proposed  in  the  Convention  by  Hamilton  to 
give  the  power  to  declare  war  to  the  Senate,  by  Butler, 
to  the  President;  but  the  Convention  determined  that 
as  the  power  was  a  prerogative  of  sovereignty  it 
should  be  given  to  the  Sovereign,  the  People,  through 
their  agents  in  Congress.  A  declaration  of  war  does  not 
always  precede  an  act  of  war,  but  it  is  customary  to 
give  such  notice.  A  letter  of  marque  is  the  authority 
of  Congress  to  a  private  person  to  equip,  officer,  arm 
and  employ  a  ship,  go  outside  the  national  boundary 
(marque)  against  an  enemy  with  which  the  Govern- 
ment is  at  war.  Such  a  ship  is  called  a  privateer,  and 
its  letter  of  marque  insures  its  officers  and  crew,  if 
captured,  the  treatment  of  prisoners  of  war.  Without 
it  they  would  be  treated  as  pirates. 

12. — To  raise  and  support  Armies,  but  no  Appro- 
priation of  Money  to  that  Use  shall  be  for  a  longer 
Term  than  two  Years; 

The  provision  that  Congress  could  not  appropriate 
money  for  the  support  of  the  army  for  a  period  longer 
than  two  years,  was  an  expression  of  the  fears  of  the 
Convention  that  unless  Congress  held  the  purse 
strings  securely,  and  thus  reserved  the  power  to  cut 
off  supplies  necessary  for  the  continuance  of  the  army, 
a  President  might  use  the  army  to  continue  war  after 
Congress  wanted  peace,  or  even  forcibly  to  usurp  all 


160  OUR   CONSTITUTION 

the  powers  of  government — make  himself  a  dictator. 
The  President  is  Commander-in-Chief  of  the  army,  but 
the  Secretary  of  War  administers  the  laws  of  Congress 
relating  to  the  army,  and  has  general  care  of  all  prop- 
erty and  persons  connected  with  the  service. 

13. — To  provide  and  maintain  a  Navy ; 

Until  1798,  the  affairs  of  the  navy  and  army  were 
administered  by  one  department,  but  in  that  year  a 
separate  department  for  the  navy  was  created,  and  its 
secretary  became  a  member  of  the  President's  Cabinet. 
Steam,  electricity,  high-powered  rifled  guns,  heavy 
armor  plates,  torpedoes,  submarine  boats,  wireless 
telegraphy,  have  all  contributed  not  only  to  revolu- 
tionize the  construction  of  warships,  but  in  no  less 
degree  to  change  the  educational  requirements  of 
officers  and  men  serving  on  such  ships.  How  the 
United  States,  under  an  empowering  clause  of  six 
short  words,  is  providing  itself  with  a  magnificent 
navy  is  not  the  least  interesting  and  important  chap- 
ter of  current  history,  and  requires  no  word  of  ex- 
planation here. 

14. — To  make  Rules  for  the  Government  and  Regu- 
lation of  the  land  and  naval  Forces; 

15. — To  provide  for  calling  forth  the  Militia  to  exe- 
cute the  Laws  of  the  Union,  suppress  Insurrections 
and  repel  Invasions; 

16. — To  provide  for  organizing,  arming,  and  disci 
plining,  the  Militia,  and  for  governing  such  Part  of 
them  as  may  be  employed  in  the  Service  of  the  United 
States,  reserving  to  the  States  respectively,  the  Ap- 
pointment of  the  Officers,  and  the  Authority  of  train- 
ing the  Militia  according  to  the  discipline  prescribed 
by  the  Congress; 


THE  BUILDERS   TOIL  ON  161 

It  has  been  the  policy  of  the  United  States  to  leave 
matters  concerning  the  militia  to  the  States;  but  when 
the  militia  is  '"employed  in  the  service  of  the  United 
States"  it  becomes  practically  a  part  of  the  regular 
Federal  military  establishment,  and  is  treated  as  such. 
The  President  may  call  upon  States  most  conveniently 
situated  for  the  aid  of  the  militia  if  the  regulars  at  • 
his  command  encounter  resistance  they  cannot  over- 
come. Early  in  the  Civil  War,  President  Lincoln  so 
called  for  militia  aid,  which  was  promptly  furnished. 
In  recent  years  the  employment  of  Federal  army  offi- 
cers has  been  authorized  as  inspectors  of  militia,  with 
a  view  to  conforming  that  service,  as  nearly  as  prac- 
ticable, with  that  of  the  regular  army. 

17. — To  exercise  exclusive  Legislation  in  all  Cases 
whatsoever,  over  such  District  (not  exceeding  ten 
Miles  square)  as  may,  by  Cession  of  particular  States, 
and  the  Acceptance  of  Congress,  become  the  Seat  of 
the  Government  of  the  United  States,  and  to  exercise 
like  Authority  over  all  Places  purchased  by  the  Con- 
sent of  the  Legislature  of  the  State  in  which  the  Same 
shall  be,  for  the  Erection  of  Forts,  Magazines,  Arse- 
nals, dock- Yards,  and  other  needful  Buildings. 

A  territory,  part  of  which  is  now  known  as  the  Dis- 
trict of  Columbia,  was  accepted  by  Congress,  in  1790, 
from  Maryland  and  Virginia.  This  contained  nearly 
100  square  miles,  but  was  reduced  to  about  60  square 
miles  in  1846  by  the  recession  of  the  territory  on  the 
Virginia  side  of  the  Potomac  River.  Laws  for  the 
District  are  made  by  Congress,  but  in  practice,  com- 
mittees of  Congress  govern  it,  much  as  cities  are  gov- 
erned by  their  elected  legislative  bodies.  The  laws  are 
administered  by  a  commission  of  four,  of  whom  three 
are  appointed  by  the  President  and  Senate,  and  the 


162  OUR   CONSTITUTION 

fourth,  an  officer  of  the  Engineer  Corps  of  the  United 
States  Army,  is  assigned  to  duty  by  the  President. 
The  population  of  the  District  (1900)  was  287,700,  of 
whom  86,700  were  negroes.  The  citizens  have  no  vote 
in  local  or  national  affairs.  The  city  of  Washington, 
the  National  Capital,  is  situated  in  that  portion  of  the 
District  directly  on  the  Potomac,  between  the  Ana- 
costia  River  and  Rock  Creek.  "The  plan  of  the  city, 
which  was  made  in  1791  by  Pierre  Charles  L'Enfant,  a 
French  engineer  who  served  in  the  Revolutionary  War, 
was  approved  by  General  Washington,  and  is  generally 
conceded  to  be  the  most  complete  as  well  as  the  most 
artistic  city  system  ever  carried  out."  The  advantage 
and  propriety  are  obvious  for  thus  setting  apart  the 
seat  of  government.  The  provision  that  Congress 
should  also  have  exclusive  authority  over  all  lands 
purchased  from  States  for  purposes  of  public  build- 
ings, yards,  docks,  etc.,  was  necessary  to  secure  to  the 
Government,  in  the  administration  of  its  affairs  in 
such  places,  immunity  from  State  laws  which  might 
interfere  with  Federal  officials  there  engaged  in  their 
duties. 

We  now  come  to  the  final  Clause  of  the  Section; 
the  least  "specific"  in  its  grant  of  power,  yet,  in  some 
respects,  the  most  important. 

Article  I,  Section  8,  Clause  18. — To  make  all  Laws 
which  shall  be  necessary  and  proper  for  carrying  into 
Execution  the  foregoing  Powers,  and  all  other  Powers 
vested  by  this  Constitution  in  the  Government  of  the 
United  States,  or  in  any  Department  or  Officer  thereof. 

Nothing  in  the  Constitution  has  excited  more  dis- 
cussion than  the  construction  of  this,  the  last  Clause 
of  the  section  we  are  considering,  read  in  connection 


THE   BUILDERS   TOIL  ON  163 

with  the  first  Clause  of  the  same  section.  It  will  be 
interesting  to  construct  a  sentence  composed  of 
phrases  of  the  two  Clauses  to  show  upon  what  is  based 
the  reasoning  of  those  who  have  urged  a  broad  inter- 
pretation of  the  Constitution.  Such  a  sentence  may 
be  made  to  read  thus :  "The  Congress  shall  have  power 
to  provide  for  the  general  welfare  of  the  United  States, 
and  to  make  all  laws  necessary  and  proper  for  carry- 
ing into  execution  the  foregoing  powers." 

"There,"  said  Hamilton,  in  effect,  when  Jefferson 
opposed  the  first  National  Bank,  on  the  ground  that 
nothing  in  the  Constitution  authorized  it,  "there  is  my 
authority  in  the  Constitution."  He  found  his  author- 
ity in  the  "general  welfare"  clause,  read  in  connection 
with  the  clause  we  are  considering.  And  under  the 
implied  powers  in  that  first  clause,  sometimes  called 
the  welfare  clause,  read  in  connection  with  the  18th, 
Congress  has  passed  a  multitude  of  laws  without 
which  the  territorial,  industrial,  social  and  educational 
expansion  of  the  nation  would  have  been  impossible 
in  anything  like  the  wonderful  extent  whose  evidences 
are  the  commonplace  facts  of  to-day,  and  whose  effects 
are  the  matter-of-course  conditions  of  the  citizen  of 
to-day.  Under  its  implied  powers.  Congress  has  aided 
the  construction  of  railroads,  it  builds  lighthouses,  im- 
proves rivers  and  harbors,  inspects  steamships,  regu- 
lates, and  in  certain  cases  prohibits,  immigration,  has 
a  National  Board  of  Health — is  building  the  Panama 
Canal.  In  countless  ways  it  promotes  the  welfare, 
education,  and  happiness  of  the  citizen,  and  aids  in 
opening  new  opportunities  for  the  employment  of 
labor  and  capital.  Anything  which  a  majority  of  the 
people  persist  in  believing  to  be  just,  reasonable  and 
desirable  for  Congress  to  do,  that  thing,  sooner  or 


164  OUR   CONSTITUTION 

later,  Congress  will  do — must  do,  so  long  as  the  people 
preserve  the  blessing  of  a  free  ballot  honestly  counted. 
Bryce,  probably  the  most  sympathetic  and  clearest- 
sighted  foreign  observer  of  our  Constitution,  says  of 
it :  "It  has  developed  by  interpretation ;  that  is,  by  the 
unfolding  of  the  meaning  implicitly  contained  in  its 
necessarily  brief  terms;  or  by  the  extension  of  its  pro- 
visions to  cases  which  they  do  not  directly  contem- 
plate, but  which  their  general  spirit  must  be  deemed 
to  cover.  *  *  *  It  resembles  theological  writings  in 
this,  that  both,  while  taken  to  be  immutable  guides, 
have  to  be  adapted  to  a  constantly  changing  world, 
the  one  to  political  conditions  which  vary  from  year 
to  year  and  never  return  to  their  former  state,  the 
other  to  new  phases  of  thought  and  emotion." 


CHAPTEK  VI 

THE  STRUCTURE  ASSUMES  SHAPE 

THE  section  whose  last  Clause  we  have  examined 
enumerated  the  general  powers  of  Congress,  and 
granted  certain  express  powers;  we  now  come  to  con- 
sideration of  express  limitations  placed  upon  Congress 
by  the  Constitution,  which  are  contained  (not  includ- 
ing those  in  the  Amendments)  in  the  eight  Clauses  of 
the  ninth  Section  of  the  first  Article. 

Article  I,  Section  9,  Clause  1. — The  Migration  or 
Importation  of  such  Persons  as  any  of  the  States  now 
existing  shall  think  proper  to  admit,  shall  not  be  pro- 
hibited by  the  Congress  prior  to  the  Year  one  thou- 
sand eight  hundred  and  eight,  but  a  Tax  or  duty  may 
be  imposed  on  such  Importation,  not  exceeding  ten 
dollars  for  each  Person. 

In  the  discussion  of  an  earlier  Clause  we  have  seen 
that  this  one  was  part  of  the  compromise  whereby  the 
importation  of  slaves  for  a  limited  period  was  con- 
sented to  by  the  New  England  States  in  return  for 
an  agreement  by  the  Carolinas  and  Georgia  to  a  grant 
of  power  to  Congress  to  have  sole  control  of  interstate 
and  foreign  commerce.  In  1807,  Congress  prohibited 
the  importation  of  slaves,  the  act  to  go  into  effect 
January  1, 1808.  In  1820,  the  slave  trade  was  declared 
by  law  to  be  piracy.  The  tax  permitted  by  the  Clause 
was  never  imposed. 

165 


166  OUR   CONSTITUTION 

Article  I,  Section  9,  Clause  2. — The  Privilege  of  the 
Writ  of  Habeas  Corpus  shall  not  be  suspended,  unless 
when  in  Cases  of  ^Rebellion  or  Invasion  the  public 
Safety  may  require  it. 

The  habeas  corpus  is  a  proceeding  whereby  a  court 
commands  a  person  detaining  a  prisoner  to  bring  the 
body  of  the  prisoner,  with  the  warrant  of  commitment, 
into  court,  that  the  sufficiency  of  the  warrant  may  im- 
mediately be  determined  by  the  judge  after  examining 
evidence.  The  court  may  then,  according  to  the  facts 
developed  in  the  examination,  discharge  the  prisoner, 
admit  him  to  bail,  or  remand  him  for  detention.  It  is 
the  ancient  safeguard  of  personal  liberty,  the  security 
of  the  innocent  citizen  against  the  plotting  of  enemies, 
or  the  wicked  device  of  those  in  authority,  falsely  to 
contrive  his  imprisonment.  In  1215,  the  English 
Barons  forced  King  John  to  grant  a  charter  of  English- 
men's rights  and  liberties,  and  nothing  in  that  Magna 
Charta  was  more  precious  to  all  the  people  of  the 
Kingdom  than  the  grant  expressed  in  the  36th  and 
39th  paragraphs  of  the  Charta:  "A  writ  of  inquisition 
shall  be  granted  freely  and  not  denied,"  and  "no  free- 
man shall  be  imprisoned  unless  by  the  lawful  judg- 
ment of  his  peers,  or  by  the  laws  of  the  land."  The 
Constitution  makers  recognized  that  when  civil  affairs 
are  greatly  disturbed,  as  by  rebellion  or  invasion,  those 
having  charge  of  prisoners  might  not  be  able  at  once 
to  produce  the  evidence  on  which  the  prisoners  were 
held;  or  it  might,  in  such  times,  be  in  the  public  in- 
terest to  confine  persons  who  could  not  be  proved  in 
a  civil  court  guilty  of  unlawful  acts.  Then  the  writ 
should  be  suspended.  The  first  suspension  of  the  writ 
under  the  Constitution  was  by  President  Lincoln,  as 
a  war  measure,  in  1861. 


THE   STRUCTURE   ASSUMES   SHAPE  167 

Article  I,  Section  9,  Clause  3. — No  Bill  of  Attainder 
or  ex  post  facto  Law  shall  be  passed. 

A  bill  of  attainder  has  been  defined  by  the  Supreme 
Court  to  be  "a  legislative  act  which  inflicts  punish- 
ment without  a  judicial  trial."  That  is,  a  Legislature 
might  name  a  person,  or  a  class  of  persons,  and  declare 
them  guilty  of  a  specified  crime,  and  fix  their  punish- 
ment. Says  Hinsdale:  "Evidently  bills  of  attainder 
may  be  made  terrible  instruments  of  cruelty  and  op- 
pression. Once,  Kings  of  England  frequently  obtained 
their  passage  in  the  name  of  public  safety,  in  order  to 
crush  their  enemies,  but  since  1796  no  such  bill  has 
passed  Parliament."  An  ex  post  facto  law  declares 
an  offence  punishable  in  a  manner  in  which  it  was 
not  punished  when  it  was  committed. 

Article  I,  Section  9,  Clause  4. — No  Capitation,  or 
other  direct,  Tax  shall  be  laid,  unless  in  Proportion  to 
the  Census  or  Enumeration  herein  before  directed  to 
be  taken. 

A  capitation  tax  is  the  familiar  poll  tax;  that  is,  one 
levied  on  all  persons  as  individuals,  irrespective  of 
property  or  occupation. 

Article  I,  Section  9,  Clause  5. — No  Tax  or  Duty  shall 
be  laid  on  Articles  exported  from  any  State. 

This  prohibition  of  an  export  tax  does  not  exempt 
from  internal  tax  an  article  upon  which  such  internal 
tax  or  excise  may  be  laid,  even  though  such  article  is 
intended  for  export  and  is  exported.  It  prohibits  a 
tax  at  the  custom  house  on  an  article  because  it  is 
exported.  It  was  argued  in  the  Convention  that  the 


168  OUR   CONSTITUTION 

export  tax  should  not  be  prohibited  as  it  might  be 
found  a  convenient  and  desirable  source  of  revenue. 
The  argument  which  prevailed  was  that  an  export  tax 
would  make  it  difficult,  by  increasing  the  price  of  an 
article,  to  find  a  foreign  market  for  it. 

Article  I,  Section  9,  Clause  6. — No  Preference  shall 
be  given  by  any  Regulation  of  Commerce  or  Revenue 
to  the  Ports  of  one  State  over  those  of  another;  nor 
shall  Vessels  bound  to,  or  from,  one  State,  be  obliged 
to  enter,  clear,  or  pay  Duties  in  another. 

By  this  provision  not  only  equal  rights  in  maritime 
trade,  but  free  trade  as  between  ports  of  all  the  States, 
was  secured.  A  ship  is  "entered"  at  a  port  by  report- 
ing her  arrival,  owner,  captain,  cargo,  route,  etc.,  to 
the  custom  house  of  the  port;  she  obtains  her  "clear- 
ance papers"  by  reporting  that  she  is  ready  to  sail, 
her  cargo,  route,  etc.  Thus  an  American  ship  sailing 
from  Boston  to  New  Orleans  may  make  the  port  of 
New  York,  if  it  is  expedient  for  her  to  do  so,  and 
neither  "enter''  or  "clear"  there,  and  thus  escape  cer- 
tain port  charges.  Foreign  ships  must  enter  and  clear 
at  any  and  all  American  ports  they  may  make. 

Article  I,  Section  9,  Clause  7. — No  Money  shall  be 
drawn  from  the  Treasury,  but  in  Consequence  of  Ap- 
propriations made  by  Law;  and  a  regular  Statement 
and  Account  of  the  Receipts  and  Expenditures  of  all 
public  Money  shall  be  published  from  time  to  time. 

This  is  another  assurance  that  the  nation's  purse 
shall  always  be  held  by  Congress,  and  that  debts  may 
not  be  contracted  nor  funds  disbursed  by  any  other 
department  of  the  Government,  except  in  accordance 
with  appropriations  made  by  law.  The  Secretary  of 


THE   STRUCTURE   ASSUMES   SHAPE  169 

the  Treasury  makes  an  elaborate  and  exhaustive  re- 
port to  Congress,  annually,  on  the  state  of  national 
finances;  and  also,  for  the  information  of  financial  in- 
terests, the  Treasury  Department  gives  daily  to  the 
press  figures  relating  to  current  receipts,  disburse- 
ments and  balances. 

Article  I,  Section  9,  Clause  8.— No  Title  of  Nobility 
shall  be  granted  by  the  United  States:  And  no  Per- 
son holding  any  Office  of  Profit  or  Trust  under  them, 
shall,  without  the  Consent  of  Congress,  accept  of  any 
present,  Emolument,  Office,  or  Title,  of  any  kind  what- 
ever, from  any  King,  Prince,  or  foreign  State. 

There  was  a  fear  in  the  Constitutional  Convention, 
which  it  is  difficult  in  this  day  easily  to  understand, 
that  foreign  governments  might  seek  to  endanger  our 
peace  or  prosperity  by  bribing  our  law-makers  or  other 
officials.  A  title  of  nobility  has  sometimes  been  an  at- 
tractive and  convenient  bribe,  with  which  a  King 
might  secure  a  partisan  in  his  own  country  or  an  ally 
in  another.  Hamilton  called  the  prohibition  of  the 
giving  of  titles  of  nobility  by  the  United  States  the 
cornerstone  of  our  republicanism;  and  in  1809  Con- 
gress proposed  a  Constitutional  Amendment,  which 
the  States  did  not  ratify,  disfranchising  any  citizen  of 
the  United  States,  even  though  not  an  office  holder, 
who  should  accept  a  title  of  nobility  from  a  foreign 
government. 

The  Federal  plan  required  that  Congress  should  re- 
ceive some  powers,  and  be  denied  others,  and,  the 
more  clearly  to  define  the  relations  between  the  States 
and  nation,  that  the  powers  of  the  States  should  be 
limited  in  terms.  These  we  now  reach  in  the  last 
Section  of  the  first  Article. 


170  OUR   CONSTITUTION 

Article  I,  Section  10,  Clause  1. — No  State  shall  enter 
into  any  Treaty,  Alliance,  or  Confederation;  grant 
Letters  of  Marque  and  Reprisal;  coin  Money;  emit 
Bills  of  Credit;  Make  any  Thing  but  gold  and  silver 
Coin  a  Tender  in  Payment  of  Debts;  Pass  any  Bill  of 
Attainder,  ex  post  facto  Law,  or  Law  impairing  the 
Obligation  of  Contracts,  or  grant  any  Title  of  Nobility. 

2. — No  State  shall,  without  the  Consent  of  the  Con- 
gress, lay  any  Imposts  or  Duties  on  Imports  or  Ex- 
ports, except  what  may  be  absolutely  necessary  for 
executing  its  inspection  Laws;  and  the  net  Produce  of 
all  Duties  and  Imposts,  laid  by  any  State  on  Imports 
or  Exports,  shall  be  for  the  Use  of  the  Treasury  of  the 
United  States;  and  all  such  Laws  shall  be  subject  to 
the  Revision  and  Control  of  the  Congress. 

3. — No  State  shall,  without  the  Consent  of  Congress, 
lay  any  Duty  of  Tonnage,  keep  Troops,  or  Ships  of 
War  in  time  of  Peace,  enter  into  any  Agreement  or 
Compact  with  another  State,  or  with  a  foreign  Power, 
or  engage  in  War,  unless  actually  invaded,  or  in  such 
imminent  Danger  as  will  not  admit  of  delay. 

A  mere  reading  of  these  Clauses  shows  that  the 
Convention,  by  adopting  them,  intended  to  strip  the 
States  of  most  of  the  powers  of  sovereignty.  To  be 
sure,  some  of  the  powers  here  expressly  denied  to  the 
States  had  just  been  expressly  conferred  on  the  Na- 
tional Government,  and  the  denial  of  them  to  the 
States  may  not  have  been  so  much  a  necessary  pro- 
vision against  friction,  as  a  formal  warning  to  States' 
Rights  extremists  that  the  States  were  not  only  con- 
federated, but  consolidated,  as  Rufus  King  said.  "If," 
he  added,  "the  States  retain  some  portion  of  sover- 
eignty, they  had  divested  themselves  of  essential  por- 
tions of  it;  if  they  formed  a  confederacy  in  some  re- 
spects, they  formed  a  nation  in  others."  But  this  view 
of  the  Constitution  frightened  so  many  people  well 


THE    STRUCTURE   ASSUMES    SHAPE  171 

disposed  toward  it  otherwise,  that  fearful  of  further 
stripping  of  the  States  of  rights,  an  amendment  was 
promptly  demanded — and  promptly  adopted  by  the 
first  Congress — that  "the  powers  not  delegated  to  the 
United  States  by  the  Constitution,  nor  prohibited  by 
it  to  the  States,  are  reserved  to  the  States  respectively, 
or  to  the  people."  (Article  X  of  the  Amendments.)  It 
is  quoted  here  in  full  in  order  at  this  time  clearly  to 
impress  this  important  feature  of  the  whole  plan :  The 
Constitution  by  express  terms  grants  enumerated 
powers  to  the  National  Government,  and  denies  others ; 
it  denies  by  express  terms  certain  powers  to  the  State 
governments,  and  reserves  to  them  (thereby,  in  effect, 
granting)  all  those  powers  not  delegated  to  the  Na- 
tional Government  nor  denied  to  the  States. 

Most  of  the  terms  limiting  the  powers  of  the  States 
have  been  considered  in  the  discussion  of  preceding 
Clauses.  Bills  of  credit  are  defined  by  the  Supreme 
Court  as  "paper  issued  by  the  sovereign  power  con- 
taining a  pledge  of  its  faith  and  designed  to  circulate 
as  money." 

Inspection  laws  are  of  many  kinds,  designed  to  ex- 
clude from  a  State  persons  afflicted  with  contagious 
diseases,  infected  live  stock  or  meat,  fruit  or  fruit 
trees,  to  maintain  a  standard  of  excellence  in  milk,  oil, 
wine,  and  many  other  articles  of  food  and  drink.  Such 
laws  may  be  expensive  to  administer,  and  States  may 
lay  and  collect  fees  on  the  articles  inspected,  even  on 
imported  articles,  but  only  for  the  purpose  of  meeting 
the  cost  of  inspection. 

A  duty  of  tonnage  is  an  ancient  form  of  tax  levied 
on  ships  and  computed  by  the  ship's  carrying  capacity, 
its  tonnage.  States  may,  of  course,  tax  ships  as  other 
property,  according  to  their  value. 


372  OUR   CONSTITUTION 

Here  we  conclude  our  examination  of  the  first  Arti- 
cle with  its  ten  Sections  and  fifty-one  Clauses;  enact- 
ing the  Constitution,  instituting  Congress,  apportion- 
ing representation,  delegating  and  restricting  powers 
to  the  Government  and  the  States;  laying  the  broad 
and  firm  foundation  upon  which  the  Convention  with 
less  difficulty  completed  their  structure,  working  with 
more  accustomed  minds  and  greater  facility,  with  less 
friction  if  with  no  greater  unanimity  of  original  views. 
The  next  question  treated  of,  the  Presidency,  was 
voluminously  discussed,  but  much  of  that  discussion 
was  incidental  to  matters  determined  in  the  first  Arti- 
cle, and  at  no  time  was  the  debate  on  the  Presidency 
so  heated,  nor  did  it  cause  such  strain,  as  that  in- 
volved in  the  great  questions  which  we  have  seen  dis- 
posed of  by  compromise. 

Article  II,  Section  1,  Clause  1. — The  executive 
Power  shall  be  vested  in  a  President  of  the  United 
States  of  America.  He  shall  hold  his  Office  during  the 
Term  of  four  Years,  and,  together  with  the  Vice 
President,  chosen  for  the  same  Term,  be  elected  as 
follows: 

2. — Each  State  shall  appoint,  in  such  Manner  as  the 
Legislature  thereof  may  direct,  a  Number  of  Electors, 
equal  to  the  whole  Number  of  Senators  and  Represen- 
tatives to  which  the  State  may  be  entitled  in  the  Con- 
gress: but  no  Senator  or  Representative,  or  Person 
holding  an  Office  of  Trust  or  Profit  under  the  United 
States,  shall  be  appointed  an  Elector. 

3. — The  Electors  shall  meet  in  their  respective 
States,  and  vote  by  Ballot  for  two  Persons,  of  whom 
one  at  least  shall  not  be  an  Inhabitant  of  the  same 
State  with  themselves.  And  they  shall  make  a  List  of 
all  the  Persons  voted  for,  and  of  the  Number  of  Votes 
for  each;  which  List  they  shall  sign  and  certify,  and 
transmit  sealed  to  the  Seat  of  the  Government  of  the 


THE  STRUCTURE  ASSUMES   SHAPE  173 

United  States,  directed  to  the  President  of  the  Senate. 
The  President  of  the  Senate  shall,  in  the  Presence  of 
the  Senate  and  House  of  Representatives,  open  all  the 
Certificates,  and  the  Votes  shall  then  be  counted.  The 
Person  having  the  greatest  Number  of  Votes  shall 
be  the  President,  if  such  Number  be  a  Majority  of  the 
whole  Number  of  Electors  appointed;  and  if  there  be 
more  than  one  who  have  such  Majority,  and  have  an 
equal  Number  of  Votes,  then  the  House  of  Representa- 
tives shall  immediately  choose  by  Ballot  one  of  them 
for  President;  and  if  no  Person  have  a  Majority,  then 
from  the  five  highest  on  the  List  the  said  House  shall 
in  like  Manner  choose  the  President.  But  in  choosing 
the  President,  the  Votes  shall  be  taken  by  States,  the 
Representation  from  each  State  having  one  Vote;  A 
quorum  for  this  Purpose  shall  consist  of  a  Member 
or  Members  from  two  thirds  of  the  States,  and  a  Ma- 
jority of  all  the  States  shall  be  necessary  to  a  Choice. 
In  every  Case,  after  the  Choice  of  the  President,  the 
Person  having  the  greatest  Number  of  Votes  of  the 
Electors  shall  be  the  Vice  President.  But  if  there 
should  remain  two  or  more  who  have  equal  Votes,  the 
Senate  shall  choose  from  them  by  Ballot  the  Vice 
President. 

The  questions  involved  in  instituting  the  Presidency 
were:  Of  how  many  persons  should  it  consist,  length 
of  term  and  how  to  elect.  The  seventh  Randolph  reso- 
lution provided  that  the  Chief  Executive  should  be 
chosen  by  Congress  and  be  ineligible  for  a  second 
term;  the  number  of  persons  to  constitute  the  office 
and  the  term  were  not  provided  for.  Early  in  the  Con- 
vention, on  June  1st,  Wilson  moved  that  the  chief 
executive  powers  should  be  vested  in  one  person. 
Members  were  familiar  with  this  plan,  as  it  prevailed 
in  the  States,  yet,  says  Madison,  "a  considerable  pause 
ensuing,  the  Chair  asked  if  he  should  put  the  ques- 
tion." At  once  it  was  seen  that  there  was  much  un- 


OUR  CONSTITUTION 

certainty,  and  a  member  somewhat  sharply  called  for 
a  fearless  expression  of  opinions. 

Sherman  thought  but  little  of  the  importance  of  the 
office.  "The  executive  magistracy,"  he  said,  would  be 
"nothing  more  than  an  institution  for  carrying  out  the 
will  of  the  Legislature.  The  person  or  persons  should 
be  appointed  by  the  Legislature."  Gerry  favored  an- 
nexing a  council  to  the  executive;  Randolph  "strenu- 
ously opposed  a  unity  in  the  executive,"  as  the  seed 
of  monarchy,  and  advocated  an  executive  of  three  per- 
sons; Wilson  favored  an  election  by  the  people  for 
three  years  and  re-eligibility;  C.  Pinckney  wanted  a 
seven-years  term;  Mason  approved  that  term,  but 
would  limit  it  by  ineligibility  as  a  preventive  of  "the 
effect  of  a  false  complaisance  on  the  side  of  the  Legis- 
lature toward  unfit  characters."  Bedford  favored 
three  years  and  no  second  term,  because  "impeach- 
ment would  reach  misfeasance  only,  not  incapacity." 

By  a  vote,  the  term  was  made  seven  years.  Then 
Wilson  renewed  his  argument  for  the  election  by  the 
people  of  the  President  and  both  branches  of  the  Leg- 
islature in  order  "to  make  them  as  independent  as  pos- 
sible of  each  other,  as  well  as  of  the  States."  Mason 
asked  to  have  this  idea  expressed  in  the  form  of  a 
motion,  which  Wilson  did  the  next  day,  presenting 
for  the  first  time  in  the  Convention  the  electoral  col- 
lege plan  (Hamilton's  plan,  presented  later,  provided 
for  a  chief  executive  to  be  called  Governor,  to  be 
elected  by  electors).  Wilson's  plan  was  that  the 
States  be  divided  into  districts;  that  the  persons 
qualified  to  vote  in  each  district  for  the  members  of 
the  House  elect  electors  to  meet  in  a  body  and  elect 
a  President  who  should  not  be  one  of  themselves. 
The  motion  was  put  on  this  plan  and  negatived  by  ten 


THE  STRUCTURE  ASSUMES  SHAPE  175 

States,  Pennsylvania  and  Maryland  only  voting  aye. 
Then  it  was  agreed  to  by  a  vote  of  eight  to  two  that 
the  Chief  Magistrate  should  be  elected  by  Congress 
for  seven  years,  and  this  decision  remained  unchanged 
until  it  appeared  in  the  draft  for  discussion  on  Au- 
gust 31st.  In  its  then  form  it  was  provided  that  the 
President  should  have  the  title  of  "His  Excellency." 
On  the  occasion  mentioned,  the  provision  was  referred 
to  the  Committee  of  Eleven,  a  hard-working  body  con- 
sisting of  a  member  from  each  State  represented, 
which  was  doing  much  to  close  up  the  business  of  the 
Convention.  That  committee  reported  it  on  Septem- 
ber 4th  in  a  form  which  provided  for  the  election  of  a 
President  and  Vice-President  for  four  years  by  elec- 
tors, the  eventual  choice,  in  case  of  no  candidate  hav- 
ing a  majority  of  electoral  votes,  to  go  to  the  Senate, 
to  choose  from  five  having  the  greatest  number  of 
votes.  In  the  debates  which  followed,  and  in  preced- 
ing debates  on  the  subject,  there  were  expressed  as 
many  opinions  as  to  the  length  of  the  President's  term 
of  office  as  there  were  States  in  the  Confederation. 
These  were,  respectively,  that  the  term  should  be  2,  3, 
4,  6,  7,  8, 10,  11,  12,  15,  20  years,  during  good  behavior, 
and  life.  Some  idea  of  the  volume  of  discussion  on 
the  manner  of  electing  the  President  will  be  conveyed 
by  mentioning  a  number,  not  all,  of  the  various  plans 
suggested.  These  were  that  each  State  should  have 
one  vote  in  his  election;  that  he  should  be  elected  by 
Congress,  by  electors  chosen  by  Governors  of  States, 
by  electors  chosen  by  the  legislatures  of  the  States, 
by  electors  chosen  by  the  people  (there  were  variations 
in  this,  the  plan  adopted),  by  electors  chosen  by  States, 
by  the  House  of  Representatives,  by  joint  ballot  of 
Representatives  and  Senators,  by  State  legislatures, 


176  OUR  CONSTITUTION 

by  the  people  direct,  by  State  Governors,  by  the  Sen- 
ate, by  Governors  with  advice  of  councils,  by  twenty- 
five  electors  allotted  to  the  States,  by  nomination  of 
candidates  by  the  House  one  of  whom  should  be 
elected  by  the  Senate. 

The  plan  of  the  Committee  of  Eleven  was  explained 
by  two  of  its  members  to  the  Committee  of  the  Whole. 
Sherman  said  that  the  election  had  been  taken  from 
Congress  and  given  to  electors  to  render  the  President 
independent  of  Congress.  G.  Morris  added  that  there 
was  "the  danger  of  intrigue  and  faction"  in  Congress 
which  the  electoral  plan  avoided.  Gorham  attacked 
the  provision  for  the  election  by  the  Senate  in  the 
event  of  no  choice  by  the  electors.  If  it  became  neces- 
sary to  choose  one  out  of  five  for  Vice-President  after 
the  President  had  been  chosen,  "a  very  obscure  man 
may  arrive  at  that  appointment."  Madison  thought 
that  if  the  Senate  had  an  eventual  choice  from  five 
voted  for  by  the  electors,  the  plan  would  tend  to  pro- 
duce a  crop  of  candidates  rather  than  a  President. 
Mason  feared  that  there  would  seldom  be  a  majority 
found  in  the  electoral  vote,  and  the  choice  "nineteen 
times  out  of  twenty"  would  go  to  the  Senate;  and  C. 
Pinckney  feared  the  same,  because  electors  would  be 
strangers  to  the  several  candidates,  and  of  course  un- 
able to  decide  on  their  comparative  merits.  But  Wil- 
son thought  that  "Continental  characters  will  multi- 
ply as  we  more  and  more  coalesce,  so  as  to  enable  the 
electors  in  every  part  of  the  Union  to  know  and  judge 
of  them."  He  made  the  suggestion,  which  was 
adopted  for  the  time,  to  give  the  choice,  in  the  event 
of  no  electoral  majority,  to  the  whole  Congress,  rather 
than  to  the  Senate,  for  the  reason  that  "the  House 
of  Representatives  will  be  so  often  changed  as  to  be 


THE   STRUCTURE   ASSUMES    SHAPE  177 

free  from  influence  and  faction  to  which  the  perma- 
nency of  the  Senate  may  subject  that  branch."  Ran- 
dolph much  preferred  election  by  Congress,  but  if 
electors  were  to  intervene  he  did  not  want  the  Senate 
to  have  the  eventual  choice.  G.  Morris  preferred  to 
give  the  eventual  choice  to  the  Senate,  rather  than  to 
the  whole  Congress,  "because  fewer  could  then  say, 
'You  owe  your  appointment  to  us.'  "  On  the  next  day 
reference  was  made  to  the  now  familiar  "favorite  son" 
idea,  when  C.  Pinckney  said  "that  electors  will  not 
have  sufficient  knowledge  of  the  fittest  men,  and  will 
be  swayed  by  an  attachment  to  the  eminent  men  of 
their  respective  States."  Rutledge  sought  to  reinsert 
the  draft  plan,  seven  years  and  election  by  Congress, 
but  only  two  States  voted  aye.  Mason  foresaw,  if  the 
Senate  was  given  eventual  choice,  a  coalition  between 
President  and  Senate  that  "will  be  able  to  subvert  the 
Constitution."  Mason  moved  to  give  the  election  to 
the  person  having  the  highest  number  of  electoral 
votes,  whether  that  number  be  a  majority  or  not;  but 
only  Maryland  and  North  Carolina  voted  aye.  Wilson 
moved  to  strike  out  Senate  and  insert  Congress  as  re- 
pository of  the  eventual  choice,  but  only  two  States 
supported  him.  Randolph  thought  giving  eventual 
choice  to  the  Senate  tended  "to  convert  that  body  into 
a  real  and  dangerous  aristocracy."  In  this  fruitless 
effort  to  arrive  at  the  precise  form  for  the  clause  the 
whole  day  was  passed,  Mason  exclaiming  at  the  end 
that  he  would  "prefer  the  government  of  Prussia  to 
one  which  will  put  all  power  into  the  hands  of  seven 
or  eight  men,  and  fix  an  aristocracy  worse  than  an  ab- 
solute monarchy." 

On   the  following  day,   Hamilton,   who   had   been 
silent  for  some  time,  said  "that  he  had  been  restrained 


178  OUR   CONSTITUTION 

from  entering  into  the  discussion  by  his  dislike  of  the 
scheme  of  the  government  in  general ;  but  as  he  meant 
to  support  the  plan  to  be  recommended,  as  better  than 
nothing,  he  wished  in  this  place  to  offer  a  few  remarks. 
He  liked  the  new  modification  (Committee  of  Eleven), 
on  the  whole,  better  than  the  printed  report  (draft). 
In  this  (draft)  the  President  was  a  monster,  elected  for 
seven  years  and  ineligible  afterwards;  having  great 
powers,  in  appointments  to  office,  and  continually 
tempted  by  this  Constitutional  disqualification  to 
abuse  them  in  order  to  subvert  the  Government.  It 
seemed  peculiarly  desirable,  therefore,  that  some  other 
mode  of  election  should  be  devised.  He  saw  none 
better  than  to  let  the  highest  number  of  (electoral)  bal- 
lots, whether  a  majority  or  not,  appoint  the  President. 
What  was  the  objection  to  this?  Merely  that  too  small 
a  number  might  appoint,  but  as  the  plan  stands,  the 
Senate  may  take  the  candidate  having  the  smallest 
number  of  votes,  and  make  him  President." 

It  was  Sherman  who  finally  made  the  successful 
motion  to  substitute  the  House  of  Representatives  for 
the  Senate  as  having  eventual  power  to  elect,  each 
State  having  one  vote.  Delaware  alone  voted  against 
this.  Thereby  were  quieted  the  fears  of  those  who  saw 
in  an  eventual  election  by  the  Senate  a  triumph  of 
aristocracy,  and  the  fears  of  those  who  dreaded  a  bu- 
reaucracy were  stilled  by  a  provision  that  no  person 
could  be  an  elector  "who  is  a  member  of  the  Legis- 
lature of  the  United  States,  or  who  holds  any  office 
of  profit  or  trust  under  the  United  States."  Two  brief 
quotations  will  serve  to  show  the  argument  of  those 
who  advocated  a  long  term.  Ellsworth  said:  "The 
most  eminent  characters  will  be  willing  to  accept  the 
trust  under  this  condition";  and  Gerry,  "The  longer 


THE    STRUCTURE   ASSUMES   SHAPE  179 

the  duration  of  his  appointment  the  more  will  his  de- 
pendence be  diminished."  Gouverneur  Morris's  re- 
marks in  favor  of  a  short  term  will  disclose  the  view 
of  those  holding  with  him:  "Prolong  his  duration  to 
fifteen  years,  will  he,  by  any  wonderful  interposition 
of  Providence,  cease  to  be  a  man?  No,  he  will  be  un- 
willing to  quit  his  exaltation;  he  will  be  in  possession 
of  the  sword,  a  civil  war  will  ensue,  and  the  comman- 
der of  the  victorious  army,  on  whichever  side,  will  be 
the  despot  of  America.  It  is  most  difficult  rightly  to 
balance  the  executive.  Make  him  too  weak,  the  Legis- 
lature will  usurp  his  powers;  make  him  too  strong, 
he  will  usurp  on  the  Legislature.  He  preferred  a  short 
term,  a  long  term  will  prevent  the  adoption  of  the 
plan." 

We  have  seen  that  with  a  calmness  which  did  not 
mark  all  of  their  proceedings  the  Convention  worked 
at  great  length  and  with  minute  searchings,  to  devise 
a  method  of  electing  the  President  which  would  be 
free  from  cabals  of  office-holders,  yet  removed  from 
the  direct  vote  of  the  people  by  the  intervention  of  an 
electoral  college  whose  members,  distinguished  for 
wisdom,  experienced,  with  a  knowledge  of  men,  should 
sift  the  qualifications  of  the  great  men  of  the  Union, 
and  elect  him  they  deemed  best  qualified.  Although 
it  has  been  modified  by  the  Twelfth  Amendment  in  an 
attempt  to  perfect  it,  and  rules  have  been  made  by 
Congress  with  the  same  purpose,  the  electoral  plan  is 
now  wholly  ignored  except  in  form.  In  substance  it  has 
been  reduced  to  a  somewhat  cumbersome  machine  for 
transmitting  to  Congress  documents  recording  a  result 
which  was  to  all  intents  accomplished  before  the  elec- 
tors met,  and  with  which  electors  had  nothing  what- 
ever to  do.  How  the  system  operated  while  it  retained 


180  OUR  CONSTITUTION 

some  of  the  attributes  the  Convention  sought  to  give 
it  permanently;  why  it  was  amended  and  how  it  twice 
threatened  civil  war  through  its  operation — and  break- 
down— is  an  interesting  story,  soon  told. 

In  1789,  ten  States  elected  electors:  Massachusetts 
and  Virginia  by  districts,  as  Members  of  the  House 
are  now  elected;  Maryland  and  New  Hampshire  on  a 
general  ticket,  as  we  now  elect  them;  in  the  other  six 
States  which  participated  in  the  Presidential  election 
the  electors  were  appointed  by  the  legislatures,  as 
Senators  are  now  appointed.  These  ten  States  re- 
turned 69  electors,  each  of  whom  voted  for  Washing- 
ton on  one  of  his  ballots.  On  the  other  ballots  12 
other  persons  were  voted  for,  John  Adams  receiving 
34  and  all  others  35.  Here  the  plan  had  worked  ac- 
cording to  theory;  each  elector  had  expressed  his  pref- 
erences for  two  persons;  Washington  was  declared 
elected  President,  and  Adams  having  the  next  great- 
est number  of  votes,  and  a  majority,  was  declared 
Vice-President.  In  the  two  next  succeeding  elections 
the  plan  worked  satisfactorily;  in  1792,  Washington 
was  re-elected  unanimously,  the  132  electors  each  cast- 
ing one  vote  for  him.  Adams  received  77  votes,  again 
the  next  greatest  number  and  a  majority,  three  other 
persons  being  voted  for,  however.  In  1796,  there  were 
the  same  number  of  electors,  but  Washington  was  not 
now  a  candidate,  there  was  no  one  to  command  the 
"solid"  first  vote:  Adams  received  71,  and  was  de- 
clared President;  Jefferson,  68,  and  was  declared  Vice- 
President.  There  the  successful  working  of  the  plan 
ended. 

Before  the  next  election  the  Democratic-Republican 
Members  of  Congress,  the  strict  constructionists,  in  a 
caucus  agreed  to  support  Jefferson  for  President  and 


THE   STRUCTURE  ASSUMES   SHAPE  181 

Aaron  Burr  for  Vice-President.  The  Federalists,  broad 
construetionists,  agreed  in  caucus  to  support  John 
Adams  and  C.  C.  Pinckney.  The  first-named  ticket 
secured  73  electoral  votes,  all  of  which  were  cast  for 
Jefferson  and  Burr,  but  not  in  distinct  ballots  desig- 
nating a  choice  for  President  and  a  choice  for  Vice- 
President.  Adams  had  65  and  Pinckney  64  votes. 
The  Constitutional  provision  clearly  covered  this  situ- 
ation, as  such  situation  had  been  contemplated  in  the 
Convention;  yet  it  did  not  provide  a  means  for  recog- 
nizing the  perfectly  well-understood  desire  of  voters 
as  expressed  by  electors.  Every  one  knew  that  the 
tie  between  Jefferson  and  Burr  resulted  from  the  fact 
that  each  elector  chosen  by  the  Democratic-Republi- 
cans had  cast  one  vote  to  elect  Jefferson  President, 
one  vote  to  elect  Burr  Vice-President.  But  the  letter 
of  the  Constitutional  provision  had  to  be  followed,  and 
the  eventual  choice  went  to  the  House;  "the  Represen- 
tatives from  each  State  having  one  vote."  There 
were  sixteen  States,  and  for  thirty-five  ballots,  taken 
during  a  seven  days'  session,  Jefferson  could  command 
the  votes  of  but  eight  States:  "A  majority  of  all  the 
States  shall  be  necessary  to  a  choice."  Burr  had  the 
votes  of  six  States  and  the  votes  of  two  were  divided. 
It  was  charged  that  Burr  made  a  compact  with  the 
Federalists  to  defeat  Jefferson,  and  thereby  defeat  the 
well-known  wishes  of  a  majority  of  all  the  voters. 
There  were  great  excitement,  anger  and  threats  of 
civil  war.  Hamilton,  who  was  Jefferson's  most  pro- 
nounced political  opponent,  but  who  was  both  politi- 
cally and  personally  opposed  to  Burr,  is  supposed  to 
have  broken  the  deadlock.  Certain  it  is  that  on  the 
thirty-sixth  ballot  two  States  which  had  voted  for 
Burr,  Vermont  and  Maryland,  changed  to  Jefferson, 


182  OUR   CONSTITUTION 

and  thus  elected  him  President.  Burr,  then,  of  course, 
became  Vice-President.  This  disclosed  that  the  plan 
was  ill-advised  for  practice  if  two  or  more  parties  by 
caucus  or  convention  were  to  name  a  pair  of  candi- 
dates for  the  two  offices;  there  must  be  some  way  for 
the  electors  to  indicate  which  of  each  pair  was  the 
choice  for  President,  which  for  Vice-President,  or 
some  Aaron  Burr,  for  whom  not  a  vote  had  been  cast 
with  such  purpose,  would  be  made  President  by  the 
House.  Therefore  the  12th  Amendment  was  adopted 
by  Congress,  ratified,  and  went  into  effect  in  1804. 
By  its  provisions  electors  are  required  to  name  in  their 
ballots  the  person  voted  for  as  President,  and  in  dis- 
tinct ballots  the  person  voted  for  as  Vice-President. 
If  no  choice  results  from  the  electoral  vote  the  House 
has  eventual  choice  from  those  persons,  not  exceeding 
three,  having  the  greatest  number  of  votes. 

An  election  went  to  the  House  under  the  amended 
provision  in  1825.  Andrew  Jackson  had  received  90 
electoral  votes,  John  Q.  Adams  84,  W.  H.  Crawford 
41  and  Henry  Clay  37.  There  was  no  majority  (130) 
and  Clay  was  excluded  from  the  House  choice  because 
he  was  not  of  the  three  having  the  highest  number  of 
votes,  but  he  influenced  the  result  against  Jackson  by 
throwing  his  strength  in  the  House  to  Adams.  The 
vote  stood:  Adams,  13  States;  Jackson,  7;  Crawford,  4. 
Jackson  had  received  a  plurality  of  both  popular  and 
electoral  votes,  and  his  defeat  in  the  House  caused 
much  bitterness,  intensified  by  the  general  belief  that 
the  result  had  been  brought  about  by  a  bargain  which 
bound  Adams  to  make  Clay  his  Secretary  of  State — 
which  Adams  did. 

In  1876  the  Presidential  nominee  of  the  Republicans 
was  Rutherford  B.  Hayes;  of  the  Democrats,  Samuel 


THE   STRUCTURE   ASSUMES   SHAPE  183 

J.  Tilden.  The  un contested  returns  showed  that  Til- 
den  had  184  of  the  electoral  votes,  one  short  of  a  ma- 
jority; Hayes,  164,  twenty-one  short  of  a  majority. 
Double  returns  from  South  Carolina,  Florida,  Louisi- 
ana, and  Oregon  involved  21  votes,  one  of  which  was 
necessary  to  give  the  election  to  Tilden,  all  of  which 
were  necessary  to  give  the  election  to  Hayes.  Con- 
gress was  Republican  in  the  Senate  and  Democratic 
in  the  House,  and  it  was  clear  that  no  agreement  to 
settle  the  disputed  returns  could  be  looked  for  from 
that  authority.  The  Constitution,  indeed,  did  not  de- 
clare who  should  "count"  the  electoral  vote,  in  the 
sense  of  deciding  which  one  of  plural  returns  from  a 
State  should  be  counted.  Fortunately  for  the  peace 
of  the  nation  the  issue  had  not  been  on  an  important, 
at  least  not  a  vital,  political  principle,  but  was  largely 
between  persons;  so  while  the  excitement  was  very 
great  it  was  not  uncontrollable.  Fortunately,  too,  Mr. 
Tilden  was  a  high-minded  patriot,  a  statesman  equally 
great  and  good,  whose  exalted  attitude  at  that  crisis 
is  yet  to  be  measured  by  a  calm,  an  understanding,  a 
non-partisan  historian.  Tilden  advised  his  friends  to 
accept  as  a  means  of  determining  the  question  a  plan 
which,  to  give  him  a  single  one  of  the  twenty-one  dis- 
puted votes,  required  something  very  like  an  interpo- 
sition of  Providence;  which  required  a  non-partisan 
judgment  by  announced  partisans  when  the  force  of 
partisanship  was  on  the  verge  of  plunging  the  coun- 
try into  civil  war.  There  can  be  no  doubt  that  Mr. 
Tilden  insisted  upon  the  acceptance  of  the  plan  only 
to  prevent  his  adherents  from  taking  up  arms,  not 
because  he  had  the  remotest  idea  that  the  plan  might 
award  him  the  Presidency. 

The  question  was:    Which  set  of  returns  from  the 


184  OUR  CONSTITUTION 

four  States  respectively  should  be  adjudged  to  be  the 
legal  returns?  Which  should  be  counted  as  provided 
for  in  the  Constitution,  wherein  there  was  not  so  much 
as  a  hint  to  govern  the  case?  The  plan  of  settlement 
was  carried  out  by  the  famous  Electoral  Commission, 
created  by  Congress,  and  constituted  thus :  The  Senate 
appointed  on  the  Commission  three  Republicans  and 
two  Democrats;  the  House,  three  Democrats  and  two 
Republicans;  the  Act  named  four  Justices  of  the  Su- 
preme Court,  two  Republicans,  two  Democrats,  and 
thus  far  the  Commission  was  divided  equally  between 
parties.  The  four  Justices,  under  the  Act,  chose  a 
fifth,  who,  assuming  that  the  Commission's  vote  would 
divide  on  political  lines,  would  in  every  case  have  the 
deciding  vote.  The  four  Justices  gave  the  deciding 
vote  to  a  Republican.  The  Commission,  by  a  division 
of  8  to  7  on  every  question,  gave  all  the  disputed  votes 
to  Mr.  Hayes,  and  he  was  declared  President.  An 
equal  number  of  equally  weighty  opinions,  of  Ameri- 
can authority,  on  both  sides  of  the  question  as  to  every 
8  to  7  vote  could  be  quoted  here;  but  a  desire  to 
avoid  presenting  any  partisan  view  may  be  attained 
best,  perhaps,  by  reproducing  only  one  opinion,  and 
that  by  a  foreigner,  Bryce.  He  wrote  in  his  American 
Commonwealth:  "The  legal  questions  were  so  difficult, 
and  for  the  most  part  so  novel,  that  it  was  possible 
for  a  sound  lawyer  and  an  honest  man  to  take  in  each 
case  either  the  view  for  which  the  Republicans  or  that 
for  which  the  Democrats  contended.  Still,  it  is  inter- 
esting to  observe  that  the  legal  judgment  of  every 
Commissioner  happened  to  coincide  with  his  party 
proclivities." 

This  and  other  difficulties  in  the  counting  of  elec- 
toral votes  caused  Congress  in  1887  to  pass  an  Act 


THE   STRUCTURE   ASSUMES    SHAPE  185 

which  makes  the  decision  of  the  States  final  in  dis- 
puted election  of  electors.  Provision  is  also  made  for 
the  procedure  in  Congress  in  cases  which  the  States 
fail  to  determine. 

As  to  the  three  Clauses  quoted  relating  to  the 
method  of  electing  the  President  and  Vice-President , 
it  is  necessary  to  add  but  a  few  particulars  to  show 
its  evolution  from  the  original  intention  which  has 
brought  the  Constitution  of  Practice  wholly  into  vari- 
ance with  the  Constitution  of  Precept.  Candidates 
are  now  named  by  national  conventions  of  delegates 
chosen  by  States,  usually  two  to  represent  each  Con- 
gressional district,  and  four  at  large,  sometimes  called 
Senatorial  delegates.  Electors  for  each  party  are 
named  by  the  several  parties  through  their  party  or- 
ganizations. The  national  conventions  name  their 
party  candidates  for  President  and  Vice-President,  and 
adopt  political  creeds  called  platforms.  These  con- 
ventions are  held,  usually,  in  the  June  or  July  preced- 
ing the  November  Presidential  elections,  and  when  the 
conventions  have  finished  their  work  the  country 
knows  that  the  candidates  named  by  the  party  secur- 
ing the  majority  of  the  electors  will  be  the  next  Presi- 
dent (unless  none  should  secure  a  majority  of  all  the 
electors)  and  that  the  result  of  the  balloting  on  that 
November  day  will  be  later  recorded,  to  comply  with 
the  form  of  the  Constitution,  by  the  elected  electors  of 
all  parties. 

The  Old  Congress  appointed  the  first  Wednesday  in 
March  as  the  day  for  the  Constitutional  Government 
to  go  into  operation,  and  the  first  Wednesday  in 
March,  1789,  was  the  fourth  of  the  month.  The  New 
Congress  enacted  in  1792  that  the  term  of  four  years 
for  which  the  President  shall  be  elected  "shall  in  all 


186  OUR    CONSTITUTION 

cases  commence  on  the  fourth  day  of  March  next  suc- 
ceeding," etc.  Unfortunately  this  undesirable  date 
cannot  now  be  changed  by  an  Act  of  Congress,  as  it 
was  made  part  of  the  Constitution  by  the  12th  Amend- 
ment :  "And  if  the  House  of  Representatives  shall  not 
choose  a  President  *  *  *  before  the  fourth  day 
of  March,"  etc. 

Article  II,  Section  1,  Clause  4. — The  Congress  may 
determine  the  Time  of  choosing  the  Electors,  and  the 
Day  on  which  they  shall  give  their  Votes;  which  Day 
shall  be  the  same  throughout  the  United  States. 

Congress  has  appointed  the  Tuesday  next  after  the 
first  Monday  in  November  as  the  time  for  choosing 
electors;  the  electors  give  their  votes  on  the  second 
Monday  in  January;  the  votes  are  opened  and  counted 
by  Congress  on  the  second  Wednesday  of  February. 

Article  II,  Section  1,  Clause  5. — No  Person  except 
a  natural  born  Citizen,  or  a  Citizen  of  the  United 
States,  at  the  time  of  the  Adoption  of  this  Constitu- 
tion, shall  be  eligible  to  the  Office  of  President; 
neither  shall  any  Person  be  eligible  to  that  Office  who 
shall  not  have  attained  to  the  Age  of  thirty  five  Years, 
and  been  fourteen  Years  a  Eesident  within  the  United 
States. 

The  exception  to  the  "natural  born"  qualification 
was  the  Convention's  way  of  paying  an  extraordinary 
compliment  to  Alexander  Hamilton  and  James  Wil- 
son, two  distinguished  members  of  the  Convention 
who  were  foreign  born.  Of  course,  any  other  foreign- 
born  citizen  having  the  other  qualifications  would 
have  been  eligible,  but  the  clause  was  drawn  in  favor 
of  the  two  statesmen  here  mentioned. 


THE   STRUCTURE   ASSUMES   SHAPE  187 

Article  II,  Section  1,  Clause  6. — In  Case  of  the  Re- 
moval of  the  President  from  Office,  or  of  his  Death, 
Eesignation,  or  Inability  to  discharge  the  Powers  and 
Duties  of  the  said  Office,  the  Same  shall  devolve  on 
the  Vice  President,  and  the  Congress  may  by  Law  pro- 
vide for  the  Case  of  Removal,  Death,  Resignation  or 
Inability,  both  of  the  President  and  Vice  President, 
declaring  what  Officer  shall  then  act  as  President, 
and  such  Officer  shall  act  accordingly,  until  the  Dis- 
ability be  removed,  or  a  President  shall  be  elected. 

The  Presidential  succession,  after  the  Vice-Presi- 
dent,  is,  as  provided  by  an  Act  of  Congress  of  1886,  the 
Secretary  of  State,  Secretary  of  the  Treasury,  Secre- 
tary of  War,  Attorney-General,  Postmaster-General, 
Secretary  of  the  Navy,  Secretary  of  the  Interior,  all 
of  whom  are  members  of  the  President's  Council,  or 
Cabinet.  The  Succession  Act  provides  that  no  Cabinet 
Officer  who  has  not  been  confirmed  by  the  Senate  shall 
succeed,  nor  one  who  has  not  the  qualifications  re- 
quired in  the  President. 

Article  II,  Section  1,  Clause  7. — The  President  shall, 
at  stated  Times,  receive  for  his  Services,  a  Compensa- 
tion, which  shall  neither  be  encreased  nor  diminished 
during  the  Period  for  which  he  shall  have  been  elected, 
and  he  shall  not  receive  within  that  Period  any  other 
Emolument  from  the  United  States,  or  any  of  them. 

The  Congress  of  1789  fixed  the  annual  salary  of  the 
President  at  $25,000,  and  it  has  been  changed  but 
once,  in  1773,  when  it  was  increased  to  $50,000.  Lib- 
eral appropriation  also  is  made  for  the  maintenance  of 
the  President's  residence,  the  White  House.  The 
Vice-President's  annual  salary  was  fixed  in  1779  at 
$5,000,  in  1853  at  $8,000,  in  1873  at  $10,000,  but  re- 


188  OUR   CONSTITUTION 

duced  by  the  next  Congress  to  $8,000  by  the  repeal 
of  the  so-called  Salary  Grab  Act. 

Article  II,  Section  1,  Clause  8. — Before  he  enter  on 
the  Execution  of  his  Office,  he  shall  take  the  following 
Oath  or  Affirmation : — "I  do  solemnly  swear  (or  affirm) 
that  I  will  faithfully  execute  the  Office  of  President  of 
the  United  States,  and  will  to  the  best  of  my  Ability, 
preserve,  protect  and  defend  the  Constitution  of  the 
United  States." 

The  President  is  instituted  into  office  by  taking  the 
prescribed  oath,  which  is  usually  administered  by  the 
Chief  Justice  of  the  Supreme  Court.  The  "inaugura- 
tion" ceremonies  of  a  President  are  altogether  a 
growth  of  custom,  and  are  not  required  by  the  Consti- 
tution or  the  laws. 

Article  II,  Section  2,  Clause  1. — The  President  shall 
be  Commander  in  Chief  of  the  Army  and  Navy  of  the 
United  States,  and  of  the  Militia  of  the  several  States, 
when  called  into  the  actual  Service  of  the  United 
States;  he  may  require  the  Opinion,  in  writing,  of  the 
principal  Officer  in  each  of  the  executive  Departments, 
upon  any  Subject  relating  to  the  Duties  of  their  re- 
spective Offices,  and  he  shall  have  Power  to  grant  Re- 
prieves and  Pardons  for  Offences  against  the  United 
States,  except  in  Cases  of  Impeachment. 

The  immediate  command  of  the  army  and  of  the 
navy  is  delegated  by  the  President  to  officers  he  se- 
lects for  that  purpose;  but  as  there  is  no  restriction 
upon  his  selection,  the  President  is,  thus,  the  actual 
Commander-in-Chief.  A  reprieve  is  a  temporary  sus- 
pension of  a  sentence,  as,  for  example,  the  reprieve  of 
an  officer  of  the  army  sentenced  by  a  Court  Martial. 
The  Clause  in  other  particulars  is  self-explanatory. 


THE   STRUCTURE   ASSUMES    SHAPE  189 

Article  II,  Section  2,  Clause  2. — He  shall  have 
Power,  by  and  with  the  Advice  and  Consent  of  the 
Senate,  to  make  Treaties,  provided  two  thirds  of  the 
Senators  present  concur;  and  he  shall  nominate,  and 
by  and  with  the  Advice  and  Consent  of  the  Senate, 
shall  appoint  Ambassadors,  other  public  Ministers 
and  Consuls,  Judges  of  the  supreme  Court,  and  all 
other  Officers  of  the  United  States,  whose  Appoint- 
ments are  not  herein  otherwise  provided  for,  and 
which  shall  be  established  by  Law:  but  the  Congress 
may  by  Law  vest  the  Appointment  of  such  inferior 
Officers,  as  they  think  proper,  in  the  President  alone, 
in  the  Courts  of  Law,  or  in  the  Heads  of  Departments. 

3. — The  President  shall  have  Power  to  fill  up  all 
Vacancies  that  may  happen  during  the  Recess  of  the 
Senate,  by  granting  Commissions  which  shall  expire 
at  the  End  of  their  next  Session. 

It  gives  an  informing  insight  into  the  Convention's 
estimate  of  the  relative  value  of  Presidential  powers, 
that  two  such  unrelated  subjects  of  vastly  different 
degrees  of  importance  should  be  disposed  of  in  the 
first  of  the  two  Clauses  just  quoted,  as  if  they  were 
alike  in  scope  and  magnitude.  But  it  would  have  re- 
quired a  mind  illuminated  by  more  than  genius,  by  in- 
spiration, to  have  foretold  in  1787  the  great  world- 
power  nation  which  was  to  grow  up  under  the  Consti- 
tution, and  how  immensely  important  the  treaty-mak- 
ing power  would  become  in  such  a  nation.  The  power 
to  appoint  office-holders  is  now  delegated,  in  effect,  by 
the  President  to  the  political  organizations  in  control 
of  his  party  in  the  States.  The  wishes  of  the  organi- 
zations are  made  known  to  him  by  members  of  Con- 
gress, and  so  systematized  has  the  business  become 
that  certain  offices  are  now  known  as  "belonging"  to 
Senators  or  to  Representatives  of  a  State;  that  is, 
the  organization  of  the  President's  party  in  a  State 


190  OUR    CONSTITUTION 

consults  the  political  welfare  of  its  Senators  as  to 
filling  some  offices,  of  its  Representatives  as  to  fill- 
ing others.  If  the  President's  party  should  have  no 
member  in  Congress  from  a  State  the  State  Chairman 
would  inform  the  President  of  the  wishes  of  his  party's 
organization  therein.  Offices  which  do  not  by  their 
nature  belong  to  the  States  are  assigned  to  them  in  the 
distribution  of  "patronage."  In  this  way  consular  and 
some  diplomatic  posts,  judgeships,  and  to  some  ex- 
tent even  Cabinet  offices  have  come  to  be  divided 
among  the  States  for  disposal  in  the  interest  of  the 
party  in  power,  as  if  their  "ownership"  were  deter- 
mined by  lines  of  political  geography.  When  there  are 
factions  in  an  organization,  or  two  Senators  of  a  domi- 
nant party  from  one  State  who  cannot  agree  upon  the 
disposal  of  the  offices  "belonging"  to  them,  the  Presi- 
dent allots  the  offices  as  the  party's  welfare  demands, 
by  the  light  of  such  information  as  he  can  command. 
It  is  to  be  assumed  that  the  whole  business  of  making 
office-holders  is  one  with  which  any  President  would 
hope  to  have  as  little  to  do  as  might  be.  It  belongs, 
under  the  system  of  party  government,  to  party  or- 
ganizations, and  its  indecencies  are  checked  only  as 
public  opinion  forces  Congress  to  enlarge  the  scope 
of  the  Civil  Service  Laws  and  diminish  the  evils  of 
the  spoils  system.  The  "advice  and  consent  of  the 
Senate"  provision  has  come  to  be  the  means  whereby 
the  Senate  prevents  the  confirmation  of  an  appoint- 
ment personally  distasteful  to  the  Senator  most  in- 
terested. It  is  an  exercise  of  Senatorial  rights  and 
privileges  guarded  by  what  is  called  the  "courtesy  of 
the  Senate." 

It  is  seen,  therefore,  that  the  power  to  appoint  cer- 
tain office-holders  rests  not  with  the  President,  but, 


THE   STRUCTURE   ASSUMES    SHAPE  191 

in  the  last  analysis,  with  the  men  who  control  the  po- 
litical organizations  belonging  to  the  party  of  the 
President. 

On  the  other  hand  the  President's  share  in  the 
treaty-making  power  is  one  of  the  most  important  and 
dignified  attributes  of  his  office,  and  has  an  effect  on 
the  country's  welfare,  its  standing  and  influence  in  the 
family  of  nations,  which  gives  to  his  office  its  chief  ele- 
ment of  greatness.  Through  treaties — sometimes  con- 
taining the  authority  for  purchase — the  United  States 
has  acquired  vast  territories  of  incalculable  value,  pre- 
served peace,  when  war  threatened,  by  delimitation 
of  boundaries,  extended  commerce,  encouraged  litera- 
ture, art  and  science,  secured  universal  rights  and 
privileges  for  its  Citizens,  opened  long-closed  foreign 
ports,  entered  into  friendly  relations  with  every  civi- 
lized nation,  established  its  Ambassadors,  Ministers 
and  Consuls  throughout  the  world,  participated  in  the 
noble  progress  whereby  the  family  of  nations  increases 
in  the  qualities  of  Justice  and  Mercy,  and  abandons 
Oppression,  Cruelty  and  Intolerance.  The  President 
exercises  this  grand  privilege*  of  his  office  through  the 
agency  of  the  Department  of  State,  and  by  consent  of 
the  Senate. 


Article  II,  Section  3. — He  shall  from  time  to  time 
give  to  the  Congress  Information  of  the  State  of  the 
Union,  and  recommend  to  their  Consideration  such 
Measures  as  he  shall  judge  necessary  and  expedient; 
he  may,  on  extraordinary  Occasions,  convene  both 
Houses,  or  either  of  them,  and  in  Case  of  Disagreement 
between  them,  with  Kespect  to  the  Time  of  Adjourn- 
ment, he  may  adjourn  them  to  such  Time  as  he  shall 
think  proper;  he  shall  receive  Ambassadors  and  other 
public  Ministers;  he  shall  take  Care  that  the  Laws 


192  OUR   CONSTITUTION 

be  faithfully  executed,  and  shall  Commission  all  the 
Officers  of  the  United  States. 

At  the  opening  of  each  annual  session  of  Congress 
the  President  sends  to  each  branch  a  copy  of  his  mes- 
sage giving  information  on  the  state  of  the  Union, 
which  information  is  elaborated  by  accompanying  cop- 
ies of  reports  of  the  heads  of  all  the  Cabinet  depart- 
ments. Special  messages  recommending  special  legis- 
lation, or  giving  special  information,  may  be  sent  to 
Congress  at  any  time,  and  frequent  messages  from 
the  President  inform  Congress  of  his  action  on  Bills 
submitted  to  him.  Washington  at  times  visited  the 
Senate  to  advise  with  that  body  on  affairs  before  him; 
but  such  advisory  relations  between  the  Senate  and 
President  have  ceased,  the  multiplicity  of  the  Presi- 
dent's duties  making  such  relations  difficult  to  main- 
tain. Now  the  President's  contact  with  Congress  is, 
principally  indirect,  through  interviews  between  Cabi- 
net officers  and  chairmen  of  committees  of  Congress. 
Special  sessions  of  Congress  have  infrequently  been 
called  to  meet  urgent  needs  for  legislation,  but  special 
sessions  of  the  Senate  alone  are  commonly  called  by  a 
retiring  President  for  a  date  soon  after  the  end  of  his 
term.  This  is  to  give  his  successor  early  opportunity 
to  transmit  to  the  Senate  a  list  of  such  appointments 
as  he  desires  to  have  promptly  confirmed  in  office.  No 
President  has  exercised  his  right  to  adjourn  Congress. 
An  Ambassador  or  Minister  from  a  foreign  country 
cannot  act  in  his  capacity  as  such  until  he  has  been 
presented  to  the  President  by  the  Secretary  of  State. 
He  is  then  said  to  have  been  "received."  Two  notable 
precedents  have  established  the  right  of  the  President 
to  dismiss  as  well  as  to  receive  diplomatic  representa- 


THE    STRUCTURE   ASSUMES    SHAPE  193 

tives.  Washington  dismissed  the  French  Minister,  M. 
Genet,  and  Cleveland  dismissed  the  British  Minister, 
Lord  Sackville-West.  The  cause  in  both  cases  was 
the  same:  meddling  in  American  politics. 

Article  II,  Section  4. — The  President,  Vice  President 
and  all  civil  Officers  of  the  United  States,  shall  be  re- 
moved from  Office  on  Impeachment  for,  and  Convic- 
tion of,  Treason,  Bribery,  or  other  high  Crimes  and 
Misdemeanors. 

Impeachments  were  explained  in  the  consideration 
of  an  earlier  Clause.  Here  we  conclude  immediate  con- 
sideration of  the  executive  department  and  pass  on  to 
another  of  the  three  great  divisions  of  government. 


CHAPTER  VII 

THE  BUILDERS'  WORK  DONE 

WE  have  now  reviewed  most  of  those  provisions  of 
the  Constitution  which  engaged  the  chief  debates  in 
the  Convention,  and  the  remaining  provisions,  al- 
though some  of  them,  especially  that  forming  the  Fed- 
eral Judicial  system,  are  of  vital  interest  and  impor- 
tance, can  be  considered  with  less  lingering  to  listen 
to  discussions  by  delegates.  Then  we  shall  witness 
the  closing  hours  of  the  great  meeting  of  patriotic 
statesmen,  the  submission  by  them  of  their  completed 
work  to  the  Old  Congress,  and  the  action  of  that  body 
in  transmitting  the  instrument  of  government  to  the 
States  for  their  action. 

Article  III,  Section  1. — The  Judicial  Power  of  the 
United  States,  shall  be  vested  in  one  supreme  Court, 
and  in  such  inferior  Courts  as  the  Congress  may  from 
time  to  time  ordain  and  establish.  The  Judges,  both 
of  the  supreme  and  inferior  Courts,  shall  hold  their 
Offices  during  good  Behavior,  and  shall,  at  stated 
Times,  receive  for  their  Services,  a  Compensation, 
which  shall  not  be  diminished  during  their  Continu- 
ance in  Office. 

The  Supreme  Court  had  an  influence  in  determining 
the  character  of  our  National  Government,  the  extent 
of  which  does  not  appear  to  have  been  wholly  fore- 

1M 


THE  BUILDERS'  WORK  DONE  195 

seen  in  the  Convention.  The  earliest  division  of  the 
people  into  political  parties  was  along  a  line  which 
separated  Strict  Constructionists  from  Broad  Con- 
structionists,  as  they  were  called:  on  one  hand  those 
who  believed  that  the  Constitution  should  be  con- 
strued to  make  the  Federal  Government  little  more 
than  a  league  of  the  States,  and  promote  the  impor- 
tance of  the  States;  on  the  other  hand  were  those  who 
believed  that  the  Constitution,  by  broad  construction, 
should  establish  supreme  Federal  control,  and  make  a 
nation  of  which  the  States  should  be  subsidiary  divi- 
sions. It  has  been  due  to  a  long  line  of  Supreme  Court 
decisions  giving  a  broad  construction  to  many  provi- 
sions of  the  Constitution  that  the  national  idea  has 
triumphed,  and  is  now  practically  unopposed  except 
in  Abstractions.  Washington  early  saw  the  great  im- 
portance and  power  of  the  Judicial  Department,  for, 
in  appointing  James  Wilson  as  an  Associate  Justice 
of  the  Supreme  Court,  he  wrote  to  him :  "Considering 
the  judicial  system  as  the  chief  pillar  upon  which  our 
national  government  must  rest,  I  have  thought  it  my 
duty  to  nominate  for  the  high  offices  in  that  depart- 
ment such  men  as  I  conceived  would  give  dignity  and 
luster  to  our  national  character." 

The  first  Congress  under  the  Constitution  passed  an 
Act  which  Washington  approved,  establishing  the  Su- 
preme Court  and  creating  the  inferior  Federal  Courts; 
and  except  for  minor  changes,  most  of  them  required 
by  the  growth  of  the  country,  the  Judiciary  Act  of 
1789  still  stands  in  its  essential  features.  The  Su- 
preme Court  now  consists  of  one  Chief  Justice  and 
eight  Associates.  This  court  sits  only  in  Washington. 
The  inferior  courts  are  Circuit  and  District.  The  ju- 
dicial territory  of  each  circuit  includes  the  judicial  ter- 


196  OUR  CONSTITUTION 

ritory  of  from  four  to  thirteen  District  Courts.  Under 
the  law  of  1891  there  were  provided  nine  circuits  with 
twenty-one  Circuit  Judges,  and  seventy-two  districts 
with  sixty-seven  District  Judges.  Besides  its  District 
Court  each  district  has  also,  at  least  once  a  year,  a  ses- 
sion of  the  Circuit  Court.  There  is  provision,  also,  for 
a  Circuit  Court  of  Appeals,  to  take  some  of  the  legal 
business  from  the  Supreme  Court,  the  latter  being 
sadly  overcrowded.  Each  Associate  Justice  of  the  Su- 
preme Court  visits  yearly  a  circuit  to  which  he  has 
been  assigned  to  sit  alone,  with  a  Circuit,  or  a  District 
Judge,  or  both,  according  to  rules  which  it  is  not  neces- 
sary to  explain  here.  The  assignments  to  circuits  are 
made  to  suit  their  convenience  by  the  Justices,  and 
usually  a  Justice's  Circuit  includes  his  home  territory. 
On  Circuit  a  Justice  is  officially  known  not  as  an  Asso- 
ciate Justice,  but  as  a  Circuit  Justice. 

Article  III,  Section  2,  Clause  1. — The  judicial  Power 
shall  extend  to  all  Cases,  in  Law  and  Equity,  arising 
under  this  Constitution,  the  Laws  of  the  United  States, 
and  Treaties  made,  or  which  shall  be  made,  under 
their  authority; — to  all  Cases  affecting  Ambassadors, 
other  public  Ministers  and  Consuls; — to  all  Cases  of 
Admiralty  and  Maritime  Jurisdiction; — to  Contro- 
versies to  which  the  United  States  shall  be  a  Party; — 
to  Controversies  between  two  or  more  States; — be- 
tween a  State  and  Citizens  of  another  State ; — between 
Citizens  of  different  States; — between  Citizens  of  the 
same  State  claiming  Lands  under  Grants  of  different 
States,  and  between  a  State,  or  the  Citizens  thereof, 
and  foreign  States,  Citizens  or  Subjects. 

Clause  2. — In  all  Cases  affecting  Ambassadors,  other 
public  Ministers  and  Consuls,  and  those  in  which  a 
State  shall  be  a  Party,  the  supreme  Court  shall  have 
original  Jurisdiction.  In  all  the  other  Cases  before 
mentioned,  the  supreme  Court  shall  have  appellate 


THE  BUILDERS'  WORK  DONE  197 

Jurisdiction,  both  as  to  Law  and  Fact,  with  such  Ex- 
ceptions, and  under  such  Regulations  as  the  Congress 
shall  make. 

Clause  3. — The  Trial  of  all  Crimes,  except  in  Cases 
of  Impeachment,  shall  be  by  Jury;  and  such  Trial 
shall  be  held  in  the  State  where  the  said  Crimes  shall 
have  been  committed;  but  when  not  committed  within 
any  State,  the  Trial  shall  be  at  such  Place  or  Places 
as  the  Congress  may  by  Law  have  directed. 

Perhaps  no  better  explanation  of  the  meaning  of 
"equity"  could  be  given  as  used  in  the  first  of  the 
Clauses  above  quoted  than  that  which  Hamilton  gave : 
''There  is  hardly  a  subject  of  litigation  between  indi- 
viduals which  may  not  involve  those  ingredients  of 
fraud,  accident,  trust,  or  hardship,  which  would  render 
the  matter  an  object  of  equitable  rather  than  of  legal 
jurisdiction.  It  is  the  peculiar  province,  for  instance, 
of  a  court  of  equity  to  relieve  against  what  are  called 
hard  bargains:  in  which,  though  there  may  have  been 
no  fraud  or  deceit,  sufficient  to  invalidate  them  in  a 
court  of  law,  a  court  of  equity  would  not  tolerate." 

This  Clause  has  been  modified  by  the  llth  Amend- 
ment. The  Supreme  Court  held  in  1793  that  the  pro- 
vision giving  it  jurisdiction  over  cases  between  a  State 
and  a  citizen  of  another  State  also  gave  it  jurisdiction 
in  a  case  of  a  citizen  of  one  State  against  another 
State,  as  well  as  of  the  case  of  a  State  against  a  citi- 
zen of  another  State.  This  was  so  contrary  to  what 
the  people  then  held  as  to  State  Sovereignty  that  the 
adoption  of  the  Amendment  was  brought  about  by 
public  opinion.  It  denies  the  jurisdiction  of  the  Su- 
preme Court  in  any  suit  by  a  citizen  of  one  of  the 
States  against  another  State. 

The  third  Clause  quoted  above  has  been  held  to  be 


198  OUR  CONSTITUTION 

affected  by  no  less  than  four  of  the  ten  Amendments, 
sometimes  called  the  Bill  of  Bights,  proposed  by  the 
first  Congress  and  ratified  by  the  States.  The  Clause 
provides  for  two  things:  the  right  to  trial  by  jury,  and 
the  right  of  an  accused  not  to  be  removed  to  a  distant 
place  for  trial.  The  reason  why  the  American  people 
should  so  elaborately  define  and  emphatically  insist 
upon  those  rights  is  found  in  the  first  chapter  of  this 
book — they  were  the  descendants  of  those  Englishmen 
whose  stern  demands  for  such  rights  are  there  related. 
How  closely  a  number  of  those  early  ten  Amendments 
resemble  parts  of  the  Bill  of  Rights  to  which  Parlia- 
ment commanded  the  assent  of  William  and  Mary  in 
1689  will  be  shown  when  we  come  to  consider  the 
Amendments. 

Article  III,  Section  3,  Clause  1. — Treason  against 
the  United  States,  shall  consist  only  in  levying  War 
against  them,  or  in  adhering  to  their  Enemies,  giving 
them  Aid  and  Comfort.  No  Person  shall  be  convicted 
of  Treason  unless  on  the  Testimony  of  two  Witnesses 
to  the  same  overt  Act,  or  on  Confession  in  open  Court. 

Clause  2. — The  Congress  shall  have  Power  to  de- 
clare the  Punishment  of  Treason,  But  no  Attainder 
of  Treason  shall  work  Corruption  of  Blood,  or  For- 
feiture except  during  the  Life  of  the  Person  attainted. 

The  term  "levying  war"  has  been  given  this  compre- 
hensive definition  by, the  Supreme  Court:  "If  a  body 
of  men  be  actually  assembled  for  the  purpose  of  effect- 
ing by  force  a  treasonable  purpose,  all  those  who  per- 
form any  part,  however  minute,  or  however  remote 
from  the  scene  of  action,  are  to  be  considered  as  trait- 
ors" and  guilty  of  treason.  "Aid  and  comfort"  may  be 
given  to  an  enemy  in  many  ways  not  requiring  active 
service  in  his  behalf.  Should  a  citizen  sell  a  horse 


THE  BUILDERS'  WORK  DONE  199 

to  an  enemy  to  draw  water  to  camp  he  would  be 
deemed  to  have  given  aid  and  comfort,  and  be  guilty 
of  treason.  Attainder  of  treason  is  the  taint,  or  dis- 
grace attached  to  a  person  found  guilty  of  treason. 
The  taint,  or  "corruption  of  blood"  forfeits  the  "at- 
tainted" person's  right  to  hold  or  inherit  property. 
But  this  bar  shall  not  operate  beyond  the  life  of  the 
person  attainted,  against  his  descendants. 

Article  IV,  Section  1.— Full  Faith  and  Credit  shall 
be  given  in  each  State  to  the  public  Acts,  Records,  and 
judicial  Proceedings  of  every  other  State.  And  the 
Congress  may  by  general  Laws  prescribe  the  Manner 
in  which  such  Acts,  Records  and  Proceedings  shall  be 
proved,  and  the  Effect  thereof. 

"The  public  acts  referred  to  are  acts  of  the  legis- 
latures; the  records  are  the  records  of  wills,  deeds, 
etc.;  the  judicial  proceedings  are  orders  and  judgments 
of  courts.''  The  faith  and  credit  a  State  gives  to  its 
own  acts,  etc.,  must  be  given  to  them  by  all  other 
States,  or  else  intolerable  disorder  would  result. 

Article  IV,  Section  2,  Clause  1. — The  Citizens  of 
each  State  shall  be  entitled  to  all  Privileges  and  Im- 
munities of  Citizens  in  the  several  States. 

A  citizen  of  one  State  going  into  another  enjoys  all 
the  privileges  of  citizens  of  the  State  into  which  he 
goes,  not  all  those  of  the  State  from  which  he  goes.  If, 
for  example,  an  illiterate  citizen  go  from  a  State  where 
illiteracy  is  not  a  bar  to  voting  he  could  not  vote  in 
the  State  into  which  he  go  if  ability  to  read  should 
there  be  a  required  qualification  for  voting. 

Clause  2. — A  Person  charged  in  any  State  with  Trea- 
son, Felony,  or  other  Crime,  who  shall  flee  from  Jus- 


200  OUR   CONSTITUTION 

tice,  and  be  found  in  another  State,  shall  on  Demand 
of  the  executive  Authority  of  the  State  from  which 
he  fled,  be  delivered  up,  to  be  removed  to  the  State 
having  Jurisdiction  of  the  Crime. 

The  treason  here  named  is  treason  against  a  State, 
as  no  State  has  jurisdiction  of  the  crime  of  treason 
against  the  United  States.  The  form  of  demand  for 
surrender  of  a  fugitive  from  justice  is  known  as  a  Gov- 
ernor's requisition,  and  the  Constitution  lays  the  ob- 
ligation of  obeying  such  requisition  upon  the  Gov- 
ernor of  any  State  to  whom  it  is  addressed,  whether 
the  offense  charged  be  or  be  not  a  crime  in  the  State 
where  the  fugitive  is  found. 

Clause  3. — No  Person  held  to  Service  or  Labor  in 
one  State,  under  the  Laws  thereof,  escaping  into  an- 
other, shall,  in  Consequence  of  any  Law  or  Regulation 
therein,  be  discharged  from  such  Service  or  Labor, 
but  shall  be  delivered  up  on  Claim  of  the  Party  to 
whom  Service  or  Labor  may  be  due. 

It  was  under  this  provision  that  Congress,  in  1850, 
enacted  the  Fugitive  Slave  Law,  which  was  one  of  the 
immediate  causes  of  the  Civil  War,  and  consequently 
of  the  emancipation  of  all  slaves  in  the  United  States. 
The  Clause  was  written  into  the  Constitution  as  part 
of  the  compromise  involving  the  continuance  of  slav- 
ery; and  as  early  as  1793  Congress  passed  laws  to  give 
it  effect.  The  more  rigorous  law  of  1850  was  de- 
manded by  the  slave  States  because  of  notorious  eva- 
sions of  the  former  law  in  non-slave  States,  but  had 
the  effect  of  strengthening  the  cause  of  the  abolition- 
ists, and  quickening  the  political  movement  which 
elected  Lincoln,  the  Emancipator,  President. 


THE  BUILDERS'  WORK  DONE  201 

Article  IV,  Section  3,  Clause  1. — New  States  may  be 
admitted  by  the  Congress  into  this  Union;  but  no  new 
State  shall  be  formed  or  erected  within  the  Jurisdic- 
tion of  any  other  State;  nor  any  State  be  formed  by 
the  Junction  of  two  or  more  States,  or  Parts  of  States, 
without  the  Consent  of  the  Legislatures  of  the  States 
concerned  as  well  as  of  the  Congress. 

Clause  2. — The  Congress  shall  have  Power  to  dis- 
pose of  and  make  all  needful  Rules  and  Regulations 
respecting  the  Territory  or  other  Property  belonging 
to  the  United  States;  and  nothing  in  this  Constitution 
shall  be  so  construed  as  to  Prejudice  any  Claims  of 
the  United  States,  or  of  any  particular  State. 

The  Convention  in  making  these  two  Clauses,  worked 
with  definite  and  immediate  objects  in  view.  Vermont 
was  asking  to  be  disentangled  from  the  conflicting 
claims  of  New  Hampshire,  New  York  and  Massachu- 
setts, and  to  be  admitted  into  the  Union  as  a  State; 
Kentucky  was  nearly  ready  for  separation  from  Vir- 
ginia and  assumption  of  Statehood;  Maine  and  Ten- 
nessee were  prepared  to  enter  the  Union  as  independ- 
ent States.  (Vermont  was  admitted  in  1791;  Ken- 
tucky, 1792,  and  Tennessee  in  1796,  but  Massachusetts 
retained  her  control  of  the  "District  of  Maine"  until 
1820,  in  which  year  Maine  was  admitted.)  The  Con- 
vention also  knew  that  there  was  a  vast  Western  ter- 
ritory to  be  cut  up  into  States  in  the  near  future. 
Already  New  York,  Virginia,  Massachusetts  and  Con- 
necticut had  surrendered  to  the  Government  all  their 
claims  to  Western  lands  on  the  pledge  of  the  Old  Con- 
gress that  the  territory  so  ceded  should  be  for  the 
common  benefit,  and  formed  into  States.  Other  States 
followed  with  their  cessions  of  Western  territory  for 
the  common  good  of  all  the  people:  South  Carolina 
in  1789,  North  Carolina  in  1790,  and  Georgia  in  1802. 


202  OUR   CONSTITUTION 

The  word  "territory"  as  used  in  the  Clause  last  quoted 
means  all  such  parts  of  the  national  domain  as  are  not 
formed  into  States;  it  was  not  until  later  that  the 
word  came  to  mean  a  political  division  of  the  national 
domain,  not  yet  a  State — a  government  on  probation 
for  Statehood,  as  we  understand  it  now.  As  has  been 
said,  each  Territory  has  a  Delegate  in  Congress  who 
may  not  vote;  it  has  no  electoral  vote,  and  its  Legisla- 
ture is  restricted  in  the  subject  and  scope  of  its  laws. 
Territories  are  admitted  as  States  when,  in  the  opin- 
ion of  Congress,  they  have  a  large  enough  population, 
display  civic  qualities  which  promise  a  wise  and  or- 
derly government,  and  when  their  advent  as  States 
(each  necessarily  with  two  Senators  and  at  least  one 
Representative  in  Congress)  will  not  be  disadvantage- 
ous to  the  political  plans  of  the  party  dominant  in 
Congress. 

Article  IV,  Section  4. — The  United  States  shall  guar- 
antee to  every  State  in  this  Union  a  Eepublican  Form 
of  Government,  and  shall  protect  each  of  them  against 
Invasion;  and  on  Application  of  the  Legislature,  or 
of  the  Executive  (when  the  Legislature  cannot  be  con- 
vened) against  domestic  Violence. 

In  the  llth  Randolph  resolution  it  was  a  "republi- 
can government"  which  the  United  States  was  to  guar- 
antee in  the  States.  This  was  first  changed  to  "a  Re- 
publican Constitution,"  and  on  July  18th,  on  Wilson's 
motion,  a  "Republican  Form  of  Government"  was 
guaranteed.  That  was  what  the  Constitution  makers 
were  providing  for  the  United  States,  and  it  was 
proper  that  the  strong  central  Government,  after  pro- 
hibiting to  the  States  the  right  to  maintain  armies  in 
times  of  peace,  should  guarantee  them  protection  from 


THE  BUILDERS'  WORK  DONE  203 

invasion,  domestic  violence  and  political  usurpation. 
A  republican  form  of  government  is  one  in  which  the 
supreme  power  is  vested  in  rulers  elected  periodically 
by  the  people.  That  was  the  judgment  of  the  Conven- 
tion in  opposition  to  Hamilton,  who  wished  to  have  the 
President  and  one  branch  of  Congress  appointed  for 
life. 

However,  when  he  came  to  advocate  the  Constitu- 
tion before  New  York's  Convention,  Hamilton  ex- 
pressed more  democratic  views  than  he  had  professed 
in  Philadelphia.  In  a  speech  before  the  New  York 
Convention,  June  20,  1788,  he  said :  "After  all,  sir,  we 
must  submit  to  this  idea,  that  the  true  principle  of  a 
republic  is  that  the  people  should  choose  whom  they 
please  to  govern  them.  Representation  is  imperfect, 
in  proportion  as  the  current  of  popular  favor  is 
checked.  This  great  source  of  free  government,  popu- 
lar election,  should  be  perfectly  pure,  and  the  most  un- 
bounded liberty  allowed." 

That  Republican  form  of  government  which  is  guar- 
anteed to  the  States  by  the  Constitution  is  representa- 
tive democracy,  or  government  by  periodically  dele- 
gated authority.  A  government  of  which  the  legisla- 
tive and  chief  executive  powers  should  be  exercised  by 
persons  holding  office  for  life,  would  soon  cease  to  be 
representative  of  anything  but  the  wishes  of  the  office- 
holders. 

In  case  of  invasion  the  United  States  acts  at  once, 
for  that  is  an  attack  on  national  authority,  and  there 
is  no  waiting  for  an  appeal  from  the  State  whose  ter- 
ritory happens  to  be  invaded.  Domestic  violence  is 
a  matter  for  police  control,  but  if  a  State's  strongest 
police  arm,  its  militia,  is  unable  to  quell  violence,  the 
United  States  uses  its  superior  force  for  the  purpose. 


204  OUR  CONSTITUTION 

upon  request  as  provided.  But  domestic  violence  may 
interfere  with  the  orderly  conduct  of  some  business  of 
the  United  States;  the  prompt  dispatch  of  the  mails 
may  be  prevented :  then,  again,  the  strong  Federal  arm 
reaches  out  and  restores  order  without  waiting  for 
any  State's  request. 

Article  V. — The  Congress  whenever  two  thirds  of 
both  Houses  shall  deem  it  necessary,  shall  propose 
Amendments  to  this  Constitution,  or,  on  the  Applica- 
tion of  the  Legislatures  of  two  thirds  of  the  several 
States,  shall  call  a  Convention  for  proposing  Amend- 
ments, which,  in  either  case,  shall  be  valid  to  all  In- 
tents and  Purposes,  as  Part  of  this  Constitution,  when 
ratified  by  the  Legislatures  of  three  fourths  of  the 
several  States,  or  by  Convention  in  three  fourths 
thereof,  as  the  one  or  the  other  Mode  of  Ratification 
may  be  proposed  by  the  Congress;  Provided  that  no 
Amendment  which  may  be  made  prior  to  the  Year 
One  thousand  eight  hundred  and  eight  shall  in  any 
Manner  affect  the  first  and  fourth  Clauses  in  the  Ninth 
Section  of  the  first  Article;  and  that  no  State,  without 
its  Consent,  shall  be  deprived  of  its  equal  Suffrage  in 
the  Senate. 

The  first  part  of  this  Article  relates  to  the  manner 
of  amending  the  Constitution  and  is  wholly  self-ex- 
planatory. The  two  Clauses  whose  amendment  was 
prohibited  before  1808  relate,  as  we  have  seen,  to 
slavery;  and  the  last  provision  of  the  Article  is  the 
extraordinary  assurance  of  the  permanence  of  equal 
representation  of  the  States  in  the  Senate. 

Article  VI,  Clause  1. — All  Debts  contracted  and 
Engagements  entered  into,  before  the  Adoption  of  this 
Constitution,  shall  be  as  valid  against  the  United 
States  under  this  Constitution,  as  under  the  Con- 
federation. 


THE  BUILDERS'  WORK  DONE  205 

This  Clause  did  not  increase  the  moral  or  legal  ob- 
ligation of  the  United  States  to  pay  the  large  war  debt 
contracted  by  the  Old  Congress;  yet  such  a  formal 
recognition  of  the  obligation  doubtless  had  the  effect 
of  giving  confidence  to  foreign  creditors,  and  it  was 
incorporated  with  their  comfort  in  view. 

Clause  2. — This  Constitution,  and  the  Laws  of  the 
United  States  which  shall  be  made  in  Pursuance 
thereof;  and  all  Treaties  made,  or  which  shall  be 
made,  under  the  Authority  of  the  United  States,  shall 
be  the  supreme  Law  of  the  Land;  and  the  Judges  in 
every  State  shall  be  bound  thereby,  any  Thing  in  the 
Constitution  or  Laws  of  any  State  to  the  Contrary  not- 
withstanding. 

Clause  3. — The  Senators  and  Representatives  before 
mentioned,  and  the  Members  of  the  several  State  Leg- 
islatures,and  all  executive  and  judicial  Officers, both  of 
the  United  States  and  of  the  several  States,  shall  be 
bound  by  Oath  or  Affirmation,  to  support  this  Con- 
stitution; but  no  religious  Test  shall  ever  be  required 
as  a  Qualification  to  any  Office  or  public  Trust  under 
the  United  States. 

No  language  could  be  clearer  or  stronger  than  this 
used  to  proclaim  the  supremacy  of  the  Union  over  the 
States.  The  Judges  in  all  State  courts  "shall  be 
bound"  to  recognize  and  give  effect  to  this  vital  fact; 
and  by  the  second  Clause  above  quoted  it  is  com- 
manded that  Governors  and  members  of  legislatures 
of  States,  as  well  as  Judges,  "shall  be  bound"  to  sup- 
port the  Constitution  and  thereby  acknowledge  the 
supremacy  of  the  nation  over  the  States.  One  can- 
not but  be  impressed  by  such  authoritative  language, 
when  compared  with  some  of  the  language  of  indi- 
vidual members  early  in  the  Convention,  with  the  be- 
lief that  when  this  part  of  the  Constitution  was 
reached  members  had  become  solemnly  conscious  of 


206  OUR   CONSTITUTION 

the  majestic  attributes  of  the  Government  whose  Com- 
mission they  were  about  to  sign. 

Article  VII. — The  Ratification  of  the  Conventions 
of  nine  States,  shall  be  sufficient  for  the  Establishment 
of  this  Constitution  between  the  States  so  ratifying 
the  Same. 

Done  in  Convention  by  the  Unanimous  Consent  of 
the  States  present  the  Seventeenth  Day  of  September 
in  the  Year  of  our  Lord  one  thousand  seven  hundred 
and  Eighty  seven  and  of  the  Independence  of  the 
United  States  of  America  the  Twelfth.  In  witness 
whereof  We  have  hereunto  subscribed  our  Names, 

Go.  WASHINGTON — Presid1 
and  deputy  from  Virginia. 

Attest  WILLIAM  JACKSON,  Secretary. 

Then  followed  the  signatures  of  the  thirty-eight 
other  members  who  signed,  noted  in  the  roll-call  of 
members  printed  in  a  former  chapter.  The  form 
of  the  second  paragraph  of  the  last  Article  was 
the  subject  of  much  discussion,  growing  out  of  the 
known  intention  of  Randolph,  Mason  and  Gerry  (and 
possibly  Blount,  it  was  thought)  not  to  sign  the  copy 
of  the  Constitution  prepared  for  transmission  to  the 
Old  Congress  by  Washington.  Randolph  felt  that  his 
original  plan  had  been  so  widely  and  irreconcilably  de- 
parted from  that  he  must  withhold  his  signature  un- 
less the  Convention  agreed  "that  amendments  to  the 
plan  (proposed  Constitution)  might  be  offered  by  the 
State  Conventions,  which  should  be  submitted  to  and 
finally  decided  on  by  another  general  Convention." 
He  spoke  feelingly  of  his  regret  in  differing  from  the 
Convention  "on  the  close  of  the  great  and  awful  sub- 
ject of  our  labors."  Finally,  moved  by  the  speech  of 
Dr.  Franklin  urging  all  to  sign,  Randolph  said  that  he 


THE   BUILDERS'    WORK   DONE  207 

did  not  mean  by  his  refusal  to  sign  to  decide  that  he 
should  oppose  the  Constitution  thereafter.  He  wished 
to  be  free  to  act  as  his  final  judgment,  after  more 
consideration,  dictated. 

Mason  also  wanted  another  Convention  provided  for, 
to  be  called  after  the  offered  Constitution  should  have 
been  examined  by  the  people.  "The  dangerous  power 
and  structure  of  the  government  will  make  it  end,"  he 
said,  "either  in  a  monarchy,  or  in  a  tyrannical  aristoc- 
racy; which,  I  am  in  doubt,  but  one  or  the  other  I  am 
sure." 

Gerry  had  many  objections  to  the  Constitution — 
some  of  them  seem  to-day  to  have  been  unimportant, 
some  almost  meaningless — but  he  agreed  to  waive  his 
other  objections  and  sign  if  the  Convention  would 
pause  in  its  work  in  order  to  deny  to  "Congress  power 
to  make  what  laws  they  may  please  to  call  necessary 
and  proper,  to  raise  armies  and  to  establish  a  tribunal 
without  juries."  The  Convention  does  not  appear  to 
have  taken  action  one  way  or  another  on  Gerry's  pro- 
posal. 

Charles  Pinckney  spoke  for  Southern  members  who 
did  not  like  all  the  provisions  of  the  Constitution,  but 
saw  the  necessity  of  giving  it  their  support.  He  par- 
ticularly objected  to  any  provision  for  another  Con- 
vention to  go  over  their  work.  "Deputies  to  a  second 
Convention  coming  together  under  the  discordant  im- 
pressions of  their  constituents  will  never  agree.  Con- 
ventions are  serious  things,  and  ought  not  to  be  re- 
peated." 

The  next  day,  the  last  of  the  Convention,  Dr.  Frank- 
lin made  a  further  attempt  to  secure  the  signatures  of 
all  members  present,  and  he  did  succeed  in  gaining 
over  Blount,  but  the  others  adhered  to  their  expressed 


208  OUR   CONSTITUTION 

intentions,  although  Franklin's  appeal  called  forth  ex- 
planations, which  in  the  case  of  Bandolph  included  his 
doubt,  already  referred  to  here,  as  to  his  future  action. 
Dr.  Franklin's  speech  was  written,  and,  as  was  cus- 
tomary, \vTas  read  by  his  colleague,  Wilson.  In  part 
he  said :  "1  confess  that  there  are  several  parts  of  this 
Constitution  which  I  do  not  at  present  approve,  but  I 
am  not  sure  I  shall  never  approve  them:  for  having 
lived  so  long,  I  have  experienced  many  instances  of 
being  obliged  by  better  information,  or  fuller  con- 
sideration, to  change  opinions  even  on  important  sub- 
jects, which  I  once  thought  right,  but  found  to  be 
otherwise.  It  is  therefore  that  the  older  I  grow,  the 
more  apt  I  am  to  doubt  my  own  judgment,  and  to  pay 
more  respect  to  the  judgment  of  others.  I  doubt 
whether  any  other  Convention  we  can  obtain  may  be 
able  to  make  a  better  Constitution.  For  when  you 
assemble  a  number  of  men  to  have  the  advantage  of 
their  joint  wisdom,  you  inevitably  assemble  with  those 
men  all  their  prejudices,  their  passions,  their  errors  of 
opinions,  their  local  interests  and  their  selfish  views. 
From  such  an  assembly  can  a  perfect  production  be 
expected?  It  therefore  astonishes  me,  sir,  to  find  this 
system  approaching  so  near  to  perfection  as  it  does; 
and  I  think  it  will  astonish  our  enemies,  who  are  await- 
ing with  confidence  to  hear  that  our  councils  are  con- 
founded like  those  of  the  Builders  of  Babel;  and  that 
our  States  are  on  the  point  of  separation,  only  to  meet 
hereafter  for  the  purpose  of  cutting  one  another's 
throats.  Thus  I  consent,  sir,  to  this  Constitution  be- 
cause I  expect  no  better,  and  because  I  am  not  sure 
that  it  is  not  the  best." 

Dr.  Franklin  then  suggested  the  form  in  which  the 
signatures  are  attached,  "done  in  Convention  by  the 


THE  BUILDERS'  WORK  DONE  209 

unanimous  consent  of  the  States  present."  This  form 
gave  those  who  did  not  wish  to  give  their  unqualified 
endorsement  of  all  that  the  Constitution  contained  op- 
portunity to  sign  as  ''done,"  not  approved. 

The  Committee  on  Style,  which  prepared  the  final 
text  of  the  Constitution  (Johnson,  Hamilton,  G.  Mor- 
ris, Madison  and  King),  also  prepared  an  address  to 
Congress  to  accompany  the  Constitution,  and  which 
was  obviously  designed  for  the  consideration  of  all  the 
people.  This  was  signed  by  George  Washington  as 
President  "by  unanimous  order  of  the  Convention,"  so 
that  the  day's  work  of  that  eventful  17th  of  September 
showed  no  surface  indication  of  the  unfortunate  dis- 
sent of  the  three  members  who  refused  to  sign;  Gor- 
ham  and  King  signing  for  Massachusetts,  although 
Gerry  did  not,  and  Madison  and  Blair  signing  for  Vir- 
ginia, though  Randolph  and  Mason  refused,  and 
thereby  giving  the  assent  of  the  twelve  States  repre- 
sented, Hamilton  signing  alone  for  New  York. 

A  third  of  a  century  earlier  Franklin  had  drawn  up 
and  submitted  to  the  famous  Albany  Convention  a 
Plan  of  Union  of  the  States;  eleven  years  before,  when 
he  was  already  seventy  years  old,  he  had  signed,  in 
that  very  hall,  the  Declaration  of  Independence,  and 
it  was  natural  that  as  they  now  signed  the  Constitu- 
tion, members  gathered  around  the  venerable  sage  and 
offered  him  their  congratulations  that  he  had  been 
spared  to  see  the  dearest  object  of  his  life  so  notably 
advanced.  To  a  group  thus  gathered  around  him  Frank- 
lin said,  pointing  to  a  gilded  half  sun  on  the  back  of  the 
presiding  officer's  chair:  "As  /  have  been  sitting  here 
all  these  weeks  I  have  often  wondered  whether  yonder  sun 
is  rising  or  setting.  But  now  I  know  that  it  is  a  rising 
sun!" 


210  OUR   CONSTITUTION 

We  find  from  Washington's  own  report  that  the  dif- 
ferences in  the  Convention  left  no  personal  dislikes, 
and  the  conclusion  was  marked  by  a  pleasant  event. 
"The  business  being  closed,"  wrote  Washington  in  his 
diary,  September  17th,  "the  members  adjourned  to  the 
city  tavern,  dined  together,  and  took  a  cordial  leave 
of  each  other.  After  which  I  returned  to  my  lodgings, 
did  some  business  with  and  received  some  papers  from 
the  secretary  of  the  convention,  and  retired  to  medi- 
tate on  the  momentous  work  which  had  been  exe- 
cuted." 


CHAPTER  VIII 

RATIFICATION  AND  AMENDMENTS 

THE  Constitution  having  been  signed,  two  things 
were  required  before  it  became  the  new  instrument 
for  the  government  of  the  Union:  the  Old  Congress 
must  submit  it  to  the  States,  and  nine,  at  least,  of 
them  must  ratify  it.  It  has  been  noted  that  the  Con- 
vention adopted  an  address  to  Congress  which,  in  the 
form  of  a  letter  from  Washington,  was  to  accompany 
the  copy  of  the  Constitution.  No  delay  occurred  in 
this  business,  for  on  the  third  day  after  the  conven- 
tion adjourned  both  papers  were  laid  before  Congress, 
then  in  session  in  New  York.  This  letter,  which  was 
obviously  designed  as  an  argument  for  the  people  as 
well  as  Congress,  makes  a  beautifully  clear  statement 
of  the  principle  that  to  secure  the  blessings  of  a  free 
representative  government  strong  enough  to  maintain 
itself,  some  resignation  of  power  must  be  made  by 
the  States  confederating.  Two  of  its  four  paragraphs 
follow: 

''It  is  obviously  impracticable  in  the  federal  govern- 
ment of  these  States  to  secure  all  rights  of  independ- 
ent sovereignty  to  each,  and  yet  provide  for  the*  in- 
terest and  safety  of  all :  Individuals  entering  into  so- 
ciety, must  give  up  a  share  of  liberty  to  preserve  the 
rest.  The  magnitude  of  the  sacrifice  must  depend  as 

211 


212  OUR   CONSTITUTION 

well  on  situation  and  circumstance  as  on  the  object  to 
be  obtained.  It  is  at  all  times  difficult  to  draw  with 
precision  the  line  between  those  rights  which  must 
be  surrendered  and  those  which  may  be  reserved;  and 
on  the  present  occasion  this  difficulty  was  increased  by 
a  difference  among  the  several  States  as  to  their  situ- 
ation, extents,  habits,  and  particular  interests. 

"In  all  our  deliberations  on  this  subject  we  kept 
steadily  in  our  view  that  which  appears  to  us  the 
greatest  interest  of  every  true  American,  the  consoli- 
dation of  our  Union,  in  which  is  involved  our  pros- 
perity, felicity,  safety,  perhaps  our  national  existence. 
This  important  consideration,  seriously  and  deeply  im- 
pressed upon  our  minds,  led  each  State  in  the  Con- 
vention to  be  less  rigid  on  points  of  inferior  magni- 
tude than  might  have  been  otherwise  expected;  and 
thus  the  Constitution,  which  we  now  present,  is  the 
result  of  a  spirit  of  amity,  and  of  that  mutual  defer- 
ence and  concession  which  the  peculiarity  of  our  politi- 
cal situation  rendered  indispensable." 

But  this  logical  pleading  by  statesmen  and  patriots 
had  no  more  immediate  effect  on  the  opposition  than 
did  the  merit  of  the  Constitution  itself.  This  opposi- 
tion will  be  explained  now  and  in  general  terms,  for 
it  is  not  intended  in  the  scheme  of  this  work  to  follow 
in  detail  the  debate  in  Congress  nor  in  the  State  Con- 
ventions. There  was  a  respectable  opposition  by  a 
party  which  honestly  feared  that  so  much  power  had 
been  given  to  Congress  that  an  arrogant  disregard  of 
States'  rights,  or  favoritism  of  one  section  of  the 
Union  at  the  expense  of  the  other,  would  surely  re- 
sult from  the  Constitution  if  adopted.  This  was  the 
party  whose  most  conspicuous  member  at  the  begin- 


RATIFICATION    AND   AMENDMENTS  213 

mug  was  Edmund  Randolph.  But  after  refusing  to 
sign  the  Constitution,  he  became  a  hearty  supporter  of 
it  in  the  Virginia  Convention,  and  made  it  possible 
for  the  indefatigable,  the  patient  and  resourceful 
Madison  to  secure  its  ratification  in  their  State.  A 
less  respectable  opposition  came  from  a  class  of  men 
who  saw  in  the  success  of  a  dominant  Federal  govern- 
ment loss  of  their  own  power  and  importance;  and  as 
their  attitude  was  actuated  wholly  by  selfish  motives 
it  could  not  be  so  easily  changed,  if  changed  at  all. 
There  were  in  some  of  the  States  men  who  were  op- 
posed to  any  federation,  some  of  whom  believed  hon- 
estly enough  that  the  States  would  prosper  more  if 
they  remained  separate  and  severally  sovereign,  that 
is,  in  the  condition  they  were  in  as  Colonies,  but  re- 
lieved from  any  authority  of  Parliament.  Others,  a 
small  number,  clung  to  the  idea  that  it  would  be  better 
to  re-establish  political  relations  with  Great  Britain 
under  conditions  more  favorable  to  the  States  than 
before  the  separation.  Finally,  there  was  a  party 
which  believed  that  political  and  material  well-being 
could  best  be  accomplished  by  the  formation  of  two 
or  more  confederacies,  each  made  up  of  a  group  of 
States  having  community  of  interests. 

In  Congress,  opposition  to  the  Constitution  was 
brisk  but  brief.  It  was  headed  by  Richard  Henry  Lee 
of  Virginia,  Dane  of  Massachusetts,  and  the  whole 
New  York  delegation.  But  Madison  hurried  from 
Philadelphia,  and,  aided  by  Henry  Lee — "Light  Horse 
Harry'' — argued  there,  as  he  had  in  Philadelphia,  as 
he  later  did  in  the  Virginia  Convention  and  in  The 
Federalist,  with  consummate  skill.  After  eight  days' 
debate,  Madison  and  his  fellow-Federalists  carried 
through  Congress  a  resolution  directing  that  the  new 


OUR   CONSTITUTION 

Constitution  and  Washington's  accompanying  letter 
"be  transmitted  to  the  several  legislatures,  in  order  to 
be  submitted  to  a  convention  of  delegates  chosen  in 
each  State  by  the  people  thereof,  in  conformity  with 
the  resolves  of  the  Convention."  Then  the  great  fight 
was  on. 

All  opposition  united  in  a  party  known  as  Antifed- 
eralists,  all  in  favor  of  the  Constitution  became 
known  as  the  Federalists,  and  in  this  party,  for  the 
time  being  at  least,  were  numbered  a  majority  of  the 
Convention  delegates,  from  whom,  in  the  several 
States,  the  Constitution  received  its  earliest  interpre- 
tation and  defense.  They  had  much  to  explain:  why 
this  had  been  done  and  that  left  undone;  here  a  pro- 
vision was  said  to  be  too  strong,  there  one  was  too 
weak;  this  was  ambiguous,  and  another  was  unneces- 
sary. But  in  one  respect  there  was  no  scattering  of 
opinion:  the  absence  of  a  Bill  of  Rights  was  com- 
plained of  by  people  generally.  That  a  Bill  of  Eights 
be  incorporated  had  been  suggested  in  Convention  as 
late  as  September  12th,  by  Mr.  Mason.  Mr.  Gerry 
had  been  urging  provision  for  jury  trial  in  civil  cases 
in  the  Federal  courts,  and  Gorham  had  pointed  out 
that  such  a  provision  had  best  be  left  to  Congress;  and 
Mason,  agreeing  with  Gorham,  added  that  he  wished 
that  the  Constitution  had  been  prefaced  with  a  Bill  of 
Rights.  "It  would  give  great  quiet  to  the  people," 
he  said,  "and  with  the  aid  of  the  State  Declarations  of 
Rights,  a  Bill  might  be  prepared  in  a  few  hours."  After 
a  brief  debate,  Mason  and  Gerry  moved  for  the  in- 
clusion of  such  a  Bill,  but  the  vote  of  no  State  was 
carried  in  its  favor.  There  had  not  been,  including 
the  roll-call,  five  minutes  devoted  to  the  subject,  judg- 
ing from  the  report,  and  it  was  dismissed  without  an- 


RATIFICATION   AND   AMENDMENTS  215 

other  word.  It  was  one  of  those  curious  instances  of  a 
body  of  men  trained  to  observe  and  understand  public 
opinion,  wholly  failing  to  realize  the  existence  of  an 
opinion  shared  by  the  people  almost  unanimously. 
Jefferson,  on  the  other  hand,  although  then  in  Paris, 
and  without  such  means  as  exist  to-day  for  learning 
transatlantic  opinion,  wrote  at  once,  upon  receiving  a 
copy  of  the  Constitution,  that  it  should  have  included 
a  Bill  of  Rights. 

Naturally  the  opposition  made  the  most  of  this:  it 
was  urged  that  the  various  State  Conventions  propose 
amendments  for  another  National  Convention  to  con- 
sider, and  if  they  were  adopted  then  the  States  would 
ratify.  Here  was  all  the  material  for  a  filibuster  of 
endless  duration.  Hamilton  argued  that  the  Constitu- 
tion itself  was  a  Bill  of  Rights;  but  Washington,  older 
and  wiser,  stemmed  the  tide  of  demand  for  another 
Convention  by  pointing  out  that  the  Bill  of  Rights 
could  most  speedily  be  secured  by  promptly  adopting 
and  amending  the  Constitution.  Washington  wrote  to 
a  correspondent:  "If  another  Federal  Convention  is 
attempted  its  members  will  be  more  discordant  and 
will  agree  upon  no  general  plan.  The  Constitution  or 
disunion  are  before  us  to  choose  from.  If  the  Con- 
stitution is  our  choice,  a  Constitutional  door  is  open 
for  amendments,  and  they  may  be  adopted  in  a  peace- 
able manner,  without  tumult  or  disorder." 

This  letter  had  precisely  the  effect  intended  in  two 
respects:  it  forced  the  opposition  to  abandon  the  fili- 
buster for  another  Convention,  and  forced  the  friends 
of  the  Constitution  to  promise  to  make  such  amend- 
ments, if  the  Constitution  be  adopted,  as  would  meet 
the  wishes  of  those  who  demanded  a  Bill  of  Rights. 
Nearly  every  State  Convention  proposed  amendments, 


216  OUE   CONSTITUTION 

some  of  them  many,  and  Washington  had  quietly  laid 
at  rest  the  fear  most  generally  felt  regarding  the  Con- 
stitution; had  taken  out  of  the  debate  the  one  subject 
on  which  all  parties  in  opposition  agreed. 

But  the  Antifederalists  had  plenty  of  fight  in  them 
yet.  Says  one  writer:  ''The  country  was  thrown  into 
a  fever  of  excitement  that  continued  to  increase  until, 
a  year  later,  the  eleventh  State  had  given  its  ratifica- 
tion. The  press  teemed  with  pamphlets,  books,  essays, 
broadsides,  articles,  poems,  letters,  allegories  and 
squibs.  The  land  resounded  with  speeches."  The  fa- 
miliar British  bogy  was  set  up  to  affright  the  people: 
James  Wilson,  a  Scotchman,  advocating  the  Consti- 
tution? was  asked  in  horror.  There,  then,  was  the 
print  of  the  cloven  foot  of  British  aristocracy.  Hamil- 
ton and  Madison  advocating  it?  Visionary  boys! 
Franklin?  A  dotard!  This  sort  of  "argument"  went 
its  usual  length  when  one  letter  was  printed  declaring 
that  Washington,  a  good  enough  soldier,  perhaps,  was 
in  politics  a  born  fool.  While  this  ancient  Chinese 
manner  of  fighting  was  going  on  in  the  street,  in  the 
convention  halls  master  minds  were  more  effectively 
at  work.  Madison,  in  Virginia,  was  aided  by  a  young 
lawyer,  John  Marshall,  later  to  become  Chief  Justice 
of  the  Supreme  Court,  and  the  greatest  interpreter  of 
the  Constitution.  But  a  man  who  was  then  more  pow- 
erful than  Marshall  was  fighting  the  Constitution  in 
Virginia,  Patrick  Henry,  and  with  him,  besides  Mason, 
who  had  not  gone  to  Madison's  aid,  as  Randolph  had, 
were  Benjamin  Harrison  and  John  Tyler,  fathers  of 
two  future  Presidents.  Henry's  popularity,  if  not  his 
strength  in  debate,  was  offset  by  "Light  Horse  Harry" 
Lee,  and  again  Madison  won  for  the  Constitution.  The 
vote  was  taken  on  June  25, 1788,  after  nearly  a  month's 

I 


RATIFICATION  AND  AMENDMENTS  217 

debate,  and  ratification  was  carried  by  the  close  vote 
of  89  to  79. 

The  first  State  to  ratify  was  Delaware,  which,  equal 
representation  in  the  Senate  being  granted,  was  satis- 
fied with  everything  else  in  the  Constitution.  Its  Con- 
vention called  at  Dover,  December  6,  1787,  was  only  a 
formal  affair,  ratifying  at  once  with  no  negative  vote. 
This  was  good  news  to  the  Federalists  of  the  little 
State's  big  neighbor,  Pennsylvania,  whose  Convention 
had  been  in  session  since  November  20th.  To  pass  a 
motion  calling  the  Convention,  the  Federalists  in  the 
Pennsylvania  Assembly  had  taken  the  extreme  meas- 
ure of  kidnapping  two  Antifederalists  whose  presence 
was  necessary  to  secure  a  quorum,  and  holding  them 
in  their  seats  in  the  State  House  while  the  vote  was 
passed.  Franklin  had  given  the  Federalists  in  his 
State  his  support,  but  the  hard  fight  for  the  Constitu- 
tion in  Pennsylvania  was  led  by  James  Wilson,  the 
Scotch- American,  who  afterwards  was  appointed  a 
Justice  of  the  Supreme  Court  by  Washington.  The 
State  ratified  December  12th,  by  a  vote  of  46  to  23. 
The  movement  was  Eastward,  for  the  next  to  give  its 
vote  for  the  Constitution  was  New  Jersey,  whose  Con- 
vention at  Trenton  ratified  December  18th,  unani- 
mously. This  was  discouraging  to  the  Opposition, 
which  had  endeavored  to  revive  the  old  jealousy  be- 
tween the  large  and  small  States. 

The  first  month  of  1788  brought  the  fourth  and  fifth 
States  into  line  for  the  Constitution :  Georgia  on  Janu- 
ary 2d,  and  Connecticut,  January  9th.  Georgia's  ac- 
tion was  important,  for  it  defeated  Patrick  Henry's 
plan  for  a  Southern  Confederacy.  Georgia  was  satis- 
fied with  the  slavery  compromise  and  voted  to  ratify 
without  a  dissenting  voice.  In  Connecticut  the  vote 


218  OUR   CONSTITUTION 

was  not  unanimous,  but  the  Federalists  carried  rati- 
fication by  the  large  majority  vote  of  128  to  40.  The 
Massachusetts  Convention  met  January  9th,  with  350 
delegates,  and,  as  in  Virginia,  both  parties  sent  their 
strongest  men.  Among  them  were  Gorham,  Strong 
and  King  who  had  been  in  the  Philadelphia  Conven- 
tion; Samuel  Adams,  anxiously  trying  to  find  out  how 
public  sentiment  stood;  Heath  and  Lincoln,  Revolu- 
tionary war  generals;  Fisher  Ames,  most  eloquent  of 
the  Federalists;  twenty-four  clergymen,  and  farmers 
from  the  hill  counties,  some  of  whom  had  been  in  arms 
against  the  State  with  Shays,  all  presided  over  by 
Governor  Hancock,  "gorgeous  in  crimson  velvet  and 
finest  laces."  In  this  Convention  the  Constitution  was 
criticised  for  nearly  everything  it  did  contain  and  for 
nearly  everything  it  did  not.  The  breadth  of  mind 
displayed  by  some  of  the  critics  may  be  measured  by 
this  expression  of  one  delegate,  Amos  Singletary  by 
name:  "These  lawyers  and  men  of  learning,  and 
moneyed  men  that  talk  so  finely  and  gloss  over  mat- 
ters so  smoothly,  expect  to  get  into  Congress  them- 
selves. They  mean  to  get  all  the  money  into  their 
hands,  and  then  they  will  swallow  up  us  little  folks, 
just  as  the  whale  swallowed  up  Jonah."  The  debate 
dragged  on,  but  the  delegates  were  so  closely  divided 
in  opinion  that  there  was  nothing  in  the  Convention  to 
inform  Samuel  Adams  how  popular  opinion  was  drift- 
ing. As  an  aid  to  the  excellent  gentleman  in  this 
predicament,  the  workingmen  of  Boston  held  a  mass- 
meeting  which  resolved  in  favor  of  the  Constitution. 
The  meeting  was  large  and  enthusiastic,  and  Adams 
saw  his  duty,  and  gave  his  help  to  Ames  and  the 
other  Federalists.  On  February  6th  the  Convention 
ratified  by  a  vote  of  187  to  168. 


RATIFICATION   AND   AMENDMENTS  219 

Maryland  followed,  April  28th,  ratifying  by  a  vote 
of  63  to  11,  making  the  seventh  State  to  approve,  with 
not  one  successfully  to  oppose.  But  the  Opposition 
was  fighting  hard,  and  was  hopeful  for  South  Caro- 
lina, whose  Convention  was  to  meet  at  Charleston, 
May  12th.  The  Antifederalists  in  that  State  had  two 
strong  leaders,  but  they  opposed  for  different  reasons. 
Rawlins  Lowndes  wanted  the  Articles  of  Confedera- 
tion preserved:  "A  most  excellent  Constitution,"  he 
called  it.  Thomas  Sumter  favored  Patrick  Henry's 
plan  for  a  Southern  Confederacy.  Cotesworth  Pinck- 
ney  led  the  Federalists,  sturdily  insisting  on  ratifica- 
tion because  he  and  his  fellow  far-Southern  delegates 
in  Philadelphia  had  been  given  what  they  asked  for, 
and  the  State  should  abide  by  the  bargain.  After 
eleven  days'  debate,  ratification  won,  on  May  23d,  by  a 
vote  of  149  to  73.  As  we  have  seen,  Virginia  held  its 
Convention  soon  after  South  Carolina,  but  the  fight 
there  was  so  close  and  debate  so  long  that  that  State 
did  not  secure  the  honor  of  being  the  ninth  State  to 
ratify;  the  distinction  of  registering  the  decisive  State 
vote  going  to  New  Hampshire,  on  June  21st,  the  Fed- 
eralists winning  by  a  vote  of  57  to  46.  Virginia  came 
into  the  column  on  the  25th,  and  the  Federalists  had 
a  good  measure  of  victory,  one  more  than  the  neces- 
sary ten,  to  give  cause  for  rejoicing.  The  Fourth  of 
July  was  at  hand,  a  happy  occasion  to  celebrate  suoh  a 
victory,  and  the  chroniclers  of  the  time  tell  of  mile- 
long  processions,  great  barbecues,  mighty  salutes  by 
veterans  of  the  war,  with  a  few  riots  in  which  the 
Constitution  was  burned  by  hot-headed  members  of 
one  party,  and  nailed  to  masts  by  partisans  of  the 
other. 

However,  it  was  felt  by  those  who  remained  calm 


220  OUR   CONSTITUTION 

in  the  midst  of  all  this  excitement,  that  without  New 
York  there  could  be  but  a  precarious  Union.  Although 
that  State  was  then  but  fifth  in  population,  she  was 
financially  and  commercially  first;  she  was  a  military 
necessity  to  a  Union,  for  she  separated  the  North  and 
South  by  her  great  triangle  of  territory  extending 
from  ocean  to  lakes.  New  York's  Convention  met  in 
Poughkeepsie,  June  17th.  Yates  and  Lansing,  who 
had  negatived  Hamilton  in  the  Philadelphia  Con- 
vention, were  in  the  State  Convention  trying  to  do 
the  same  thing  again.  Their  party  was  led  by  George 
Clinton,  an  astute  politician  and  a  bitter  opponent  of 
the  Constitution,  who  had  with  him  at  the  beginning 
nearly  two-thirds  of  the  delegates.  Clinton  depended 
for  his  chief  aid  in  convention  debate  on  Melanchthon 
Smith.  John  Jay  was  the  leader  of  the  Federalists, 
Hamilton  his  most  efficient  lieutenant.  These  two, 
Jay  and  Hamilton,  had,  with  Madison,  written  the 
series  of  papers  advocating  the  Constitution,  known  in 
book  form  as  The  Federalist:  "Perhaps,"  says  Fiske, 
"the  most  famous  of  American  books,  and  undoubt- 
edly the  most  profound  and  suggestive  treatise  on  gov- 
ernment that  has  ever  been  written."  This  work  had 
appeared  serially  during  the  seven  months  from  Oc- 
tober, 1787,  to  May,  1788.  It  has  been  asserted  so  many 
times,  as  a  matter  of  course,  that  The  Federalist  had 
a  great  effect  in  influencing  public  opinion  favorably 
to  the  Constitution,  that  one,  like  the  present  writer, 
who  holds  the  opposite  view,  sets  down  his  opinion 
with  small  hope  of  making  converts.  It  may  not  be 
without  interest,  even  if  not  convincing,  to  quote  from 
the  editor  of  a  recent  scholarly  edition  of  The  Federal- 
ist, Paul  L.  Ford:  "That  The  Federalist  produced  any 
marked  influence  at  the  time,  in  leading  to  the  accept- 


RATIFICATION  AND  AMENDMENTS 

ance  of  the  new  government,  is  questionable.  The 
New  York  elections  for  delegates  to  the  State  Conven- 
tion well  proved  that  'Publius'  (the  papers  were  so 
signed)  had  written  in  vain,  for  only  one-third  of  the 
men  chosen  were  Federalists — making  the  contest  one 
of  the  most  crushing  defeats  ever  experienced  by  the 
Anti-Clinton  party."  It  must,  of  course,  be  true, 
whether  The  Federalist  itself  had  much  or  little  influ- 
ence at  the  time,  that  the  intense  application  of  the 
writers'  minds  to  their  subject,  the  reading  and  special 
study  devoted  to  it  while  preparing  their  papers,  the 
necessity  for  arranging  in  orderly  and  convincing 
form  their  arguments  in  favor  of  the  Constitution,  the 
mentally  clarifying  process  of  writing  out  their  con- 
clusions, did  have  a  great  influence  for  good  upon  their 
speeches  in  convention.  It  equipped  them  for  attack, 
and  armed  them  to  resist  sudden  assault  in  the  battle 
of  debate. 

As  Madison  converted  Randolph  in  Virginia,  so 
Hamilton,  by  his  logic  in  debate,  won  over  Clinton's 
chief  debater,  Melanchthon  Smith.  After  this  victory 
the  rest  was  easy,  and  on  July  27th  the  Federalists 
won  for  ratification  by  a  vote  of  30  to  27.  This  left 
only  Ehode  Island  and  North  Carolina  "outside  the 
Union,"  and  they  remained  in  that  anomalous  position 
until  after  the  new  government  had  been  formed.  The 
former  ratified  November  21,  1789;  the  latter  May  29, 
1790. 

When  New  Hampshire  had  ratified,  the  President 
of  the  Old  Congress,  Cyrus  Griffen  of  Virginia,  noti- 
fied that  body  that  nine  States  had  approved  the  Con- 
stitution, and  Congress,  in  September,  1788,  named  the 
first  Wednesday  in  the  next  January  for  appointing 
electors;  the  first  Wednesday  in  February  for  the 


222  OUR    CONSTITUTION 

electors  to  vote  for  President;  the  first  Wednesday  in 
March  (which  fell  on  the  fourth  of  that  month)  for 
beginning  proceedings  under  the  New  Constitution. 
It  was  April  6th — in  those  days  of  slow  coaches  and 
that  season  of  heavy  roads — before  a  quorum  of  Con- 
gress answered  roll-call,  and  the  electoral  vote  was 
counted  in  a  joint  session.  Messengers  were  sent  to 
notify  Washington  and  Adams  of  their  election,  and 
Adams  arrived  in  New  York  April  21st,  and  Washing- 
ton a  day  or  two  later.  On  the  30th  of  April,  in  front 
of  Federal  Hall,  in  Wall  Street  at  the  corner  of  Broad, 
a  great  number  of  people  being  present,  Chancellor 
Livingston  administered  the  oath  of  office  to  the  first 
President  of  the  United  States  under  the  Constitution. 
Before  the  President  had  raised  his  head,  bowed  over 
the  Bible  upon  which  he  had  sworn,  the  Chancellor 
exclaimed  aloud:  "Long  live  George  Washington, 
President  of  the  United  States!"  and  the  crowds  ech- 
oed the  words  in  enthusiastic  shouts. 

We  have  seen  that  there  was  a  widespread  demand 
for  a  Bill  of  Rights  in  the  Constitution,  and  that  its 
friends  agreed  that  it  should  be  amended  in  that  re- 
spect, if  adopted.  The  new  Congress  at  once  set  to 
work  to  carry  out  this  understanding,  and  found  itself 
plentifully  supplied  with  raw  material  for  the  pur- 
pose. The  Conventions  of  no  less  than  eight  of  the 
States  which  had  ratified,  sent  to  Congress  amend- 
ments, which  numbered  in  all  189;  many  were  prac- 
tically alike,  but  some  were  independent  propositions 
outside  of  the  general  range.  Congress,  in  September, 
1789,  proposed  twelve  amendments  to  the  States,  ten 
of  which  received  the  required.ratifications,  and  were 
declared  in  force  in  December,  1791.  The  two  amend- 


RATIFICATION  AND  AMENDMENTS  223 

ments  which  failed  of  ratification  (Nos.  1  and  2  as  sub- 
mitted) would  have  materially  modified  existing  Con- 
stitutional provisions,  while  the  ten  adopted  are,  in  a 
general  sense,  supplemental  to,  rather  than  amenda- 
tory of,  the  Constitution.  The  rejection  of  the  two 
was  a  proof  that  the  people  generally  were  not  dis- 
posed to  meddle  with  original  provisions,  but  to  let 
Congress  have  a  fair  chance  to  give  them  a  trial.  As 
the  ten  which  were  adopted  have  been  so  often  spoken 
of  as  a  Bill  of  Rights,  it  will  be  interesting  to  make  a 
few  comparisons  between  some  of  them  and  some  of 
the  parts  of  the  English  Bill  of  Rights  of  1689. 

Article  I  of  the  Amendments  says:  "Congress  shall 
make  no  law  prohibiting  the  people  to  petition  the 
government  for  a  redress  of  grievances." 

Clause  5  of  the  Bill  says:  "It  is  the  right  of  the 
subject  to  petition  the  King,  and  all  prosecutions  of 
such  petitioning  are  illegal." 

Article  II  of  the  Amendments  says:  "The  right  of 
the  people  to  keep  and  bear  arms  shall  not  be  in- 
fringed." 

Clause  7  of  the  Bill  says:  "The  subjects  which  are 
Protestants  may  have  arms  for  defence." 

Article  III  of  the  Amendments  says:  "No  soldier 
shall  in  time  of  peace  be  quartered  in  any  house,  with- 
out the  consent  of  the  Owner,  nor  in  time  of  war,  but 
in  a  manner  to  be  prescribed  by  law." 

Clause  6  of  the  Bill  says:  "The  raising  or  keeping  of 
a  standing  army  within  the  kingdom  in  time  of  peace, 
unless  it  be  with  consent  of  Parliament,  is  against 
law." 

Article  VI  of  the  Amendments  says:  "In  all  crimi- 
nal prosecutions  the  accused  shall  enjoy  the  right  to  a 
speedy  and  public  trial  by  an  impartial  jury  of  the 


224  OUR   CONSTITUTION 

State  and  district  wherein  the  crime  shall  have  been 
committed.'' 

Clause  2  of  the  Bill  says:  "Jurors  ought  to  be  duly 
impanelled  and  returned,  and  jurors  which  shall  pass 
upon  men  in  trials  for  high  treason  ought  to  be  free- 
holders." 

The  entire  text  of  the  ten  Amendments  will  be 
found,  with  the  others,  in  their  proper  order,  with 
the  Constitution  in  full  in  the  Appendix  to  this 
book.  Readers  may  find  other  resemblances  to 
the  English  Bill  of  Rights,  which  will  be  found  in  the 
final  chapter.  One  commentator  has  said  of  them: 
"They  are  a  bill  of  right  de  facto,  although  not  so 
called.  Some  said  at  the  time  that  they  were  of  no 
value,  since  they  secured  rights  never  endangered. 
They  satisfied,  however,  a  popular  demand,  and  several 
of  them  have  proved  practical  restraints  of  the  Federal 
Government.  We  are  so  little  familiar  with  the  acts 
prohibited,  as  the  abridgement  of  the  freedom  of 
speech,  establishments  of  religion,  the  quartering  of 
soldiers  in  private  houses,  etc.,  that  we  but  poorly  ap- 
preciate at  what  cost  these  immunities  were  originally 
obtained  by  our  English  ancestors.  The  men  of  1789, 
who  had  themselves  passed  through  a  struggle  with 
arbitrary  power,  had  a  more  vivid  conception  of  their 
value." 

The  llth  Amendment  was  proposed  by  Congress  in 
March,  1794,  but  was  not  ratified  and  declared  in  force 
until  January,  1798.  This  we  have  considered  in  con- 
nection with  Section  2,  Clause  1  of  Article  II.  A  de- 
cision of  the  Federal  Supreme  Court  held  that  its 
jurisdiction  extended  to  the  case  of  an  action  against 
a  State  by  a  citizen  of  another  State.  Such  judicial 
power  is  expressly  denied  by  the  Amendment. 


RATIFICATION   AND   AMENDMENTS  225 

The  12th  Amendment  was  submitted  to  the  States 
by  Congress  in  December,  1803;  ratified,  and  pro- 
claimed by  the  Secretary  of  State  as  part  of  the  Con- 
stitution in  September,  1804.  This,  as  we  saw  in  the 
course  of  our  general  review,  was  to  remedy  a  fault 
developed  in  the  operation  of  the  method  of  electing 
the  President  and  Vice-President. 

These  relatively  slight  Amendments  having  been  ap- 
plied, the  Constitution  remained  further  untouched 
for  sixty  j-ears.  Then,  during  the  period  of  the  Civil 
War  and  Reconstruction,  the  13th,  14th  and  15th 
Amendments  were  adopted.  In  the  Constitution  as 
framed  at  Philadelphia  neither  the  word  "slave"  nor 
"slavery"  was  used,  but  in  the  debates  both  were  used 
frequently;  and  in  the  instrument  itself  the  institution 
of  slavery  was  recognized,  the  counting  of  slaves  in 
apportioning  Representatives  and  laying  direct  taxes, 
and  the  importation  of  slaves  for  a  limited  period, 
were  all  provided  for.  These  were  the  result  of  com- 
promises without  which,  it  was  believed,  the  Conven- 
tion would  have  failed  to  agree  upon  any  Constitution. 
It  was  also  believed  that  slavery  would  decline  and 
gradually  cease  in  the  South,  as  was  the  case  in  the 
North;  that  it  had  entered  into  politics  for  the  last 
time  in  the  controversy  over  making  and  ratifying  the 
Constitution.  But  industrial  conditions  in  some  of  the 
slave-holding  States  gradually  changed  in  such  a  man- 
ner as  to  make  slave  labor  seem  a  necessity  to  the  very 
existence  of  those  States — or  at  least  to  their  expan- 
sion and  prosperity.  This  had  the  effect  of  making 
the  institution  the  center  and  vital  concern  of  poli- 
tics in  those  States.  While  this  dogma  was  becoming 
a  fixed  and  essential  article  of  political  faith  in  the 
South,  there  was  in  the  North  a  growing  feeling  that 


226  OUR   CONSTITUTION 

no  more  slave  States  should  be  admitted  into  the 
Union.  Sectionally,  the  Senate  was  equally  divided 
between  the  11  Northern  and  11  Southern  States,  and 
Maine  and  Missouri  were  asking  admission  into  the 
Union.  Maine,  of  course,  would  come  in  as  a  free-soil 
State,  and  if  slavery  could  be  prohibited  in  Missouri 
the  free  States  would  gain  control  of  the  Senate.  A 
long  and  hotly  contested  struggle  over  the  proposal  to 
admit  Missouri  only  upon  condition  that  slavery  be 
prohibited  by  her  Constitution,  led  to  the  Missouri 
Compromise  of  1820.  This  admitted  that  State  with- 
out slave  prohibition,  but  prohibited  slavery  forever 
in  any  and  all  States  which  might  be  made  out  of  that 
portion  of  Louisiana  Purchase  territory  lying  north 
of  Missouri.  After  Maine  and  Missouri,  which  kept 
the  equal  division  in  the  Senate,  Arkansas  was  admit- 
ted without  prohibition,  but  this  gain  for  the  South 
was  equalized  six  months  later  by  the  admission  of 
Michigan,  a  free-soil  State.  Early  in  1845  Florida  was 
admitted,  a  gain  for  the  slavery  interest,  but  now 
there  was  no  more  territory  available  for  new  slave 
States,  while  in  the  Purchase  a  vast  domain  remained 
(from  which  nine  States  have  since  been  made),  and 
Iowa  in  that  territory,  as  well  as  Wisconsin,  in  the 
old  Northwest  territory,  were  asking  for  admission. 
Southern  statesmen  sought  to  equalize  this  political 
disadvantage  by  admitting  to  the  Union  Texas,  an 
independent  State  which  had  revolted  from  Mexico  in 
1836.  Texas  was  admitted  without  provision  for  or 
against  slavery,  in  1845,  and  the  Mexican  war  soon 
followed,  resulting  in  the  acquisition  by  conquest  and 
purchase  of  the  territory  from  which  the  States  of 
California,  Nevada  and,  in  part,  Wyoming  and  Colo- 
rado have  been  formed.  But  before  this  an  effort  was 


RATIFICATION   AND   AMENDMENTS  227 

made  in  Congress  to  prohibit  slavery  in  any  of  the 
States  which  might  be  made  out  of  the  territory  ac- 
quired ficm  Mexico.  This  failed.  Then  followed  the 
enactment  by  Congress  of  a  number  of  measures 
known  as  the  Compromise  of  1850.  By  them  Califor- 
nia was  admitted  as  a  free  State;  States  to  be  carved 
out  of  Texas  were  to  be  free  or  slave  as  their  inhabit- 
ants might  decide;  Utah  and  New  Mexico  were  organ- 
ized as  Territories  without  slavery  being  expressly 
prohibited  or  permitted;  and  a  new  and  rigorous  Fugi- 
tive Slave  Act  was  passed.  While  these  measures  did 
not  in  term  alter  the  provisions  of  the  Missouri  Com- 
promise, their  eft'ect  was  to  give  endorsement  to  the 
doctrine  that  Congress  should  leave  to  the  people  of 
new  States  the  slave  question — not  interfere.  This 
effect  was  soon  reflected  in  legislation,  for  in  the  Act 
of  1854,  organizing  the  Territories  of  Kansas  and  Ne- 
braska (both  in  the  Purchase  territory  and  in  the  por- 
tion of  it  made  Free  Soil  by  the  Missouri  Compromise), 
it  was  declared  that  the  Compromise  was  "inopera- 
tive and  void."  Congress,  it  further  declared,  was 
not  to  legislate  slavery  into  a  Territory,  nor  exclude 
it,  but  leave  the  people  of  the  Territories  free  to  settle 
the  question.  In  1856  the  two  great  parties  made  slav- 
ery in  the  Territories  the  paramount  issue,  and  those 
who  contended  for  non-interference  elected  Mr.  Bu- 
chanan President. 

The  operation  of  the  Fugitive  Slave  Act  was  at  this 
lime  intensifying  the  anti-slavery  sentiment  in  the 
North,  and  a  decision  by  the  Federal  Supreme  Court 
in  the  first  year  of  the  Buchanan  term  greatly  added 
to  the  feeling.  This  was  the  famous  Dred  Scott  case 
which,  beginning  in  the  State  courts  of  Missouri  in 
1848,  had  been  carried  by  appeal  through  various  State 


228  OUR    CONSTITUTION 

and  Federal  courts  until  its  final  decision  by  the 
United  States  Supreme  Court  in  1857.  Scott  was  a 
slave  owned  by  a  Missourian,  but  who  had  lived  for 
some  years  with  his  owner  in  Illinois,  and  in  that  part 
of  the  Louisiana  Purchase  territory  which  is  now  Min- 
nesota, where  slavery  had  been  prohibited  by  Con- 
gress in  1820.  When  Scott  returned  to  Missouri  he 
sued  for  his  freedom  on  the  grounds  that  by  his  resi- 
dence on  free  soil  he  had  acquired  the  status  of  a  freed- 
man.  The  Missouri  court  held  that  on  his  return  to 
that  State  the  status  of  slavery  reattached  to  him. 
The  final  decision  of  the  Supreme  Court,  from  which 
two  justices  dissented,  was  that  Scott,  as  a  Negro,  had 
no  legal  existence  as  a  person,  and  that  as  he  therefore 
could  not  be  a  citizen  he  could  not  sue  in  the  National 
Court.  Besides  deciding  the  question  involved  in  the 
case,  a  majority  of  the  court  declared  that  the  Mis- 
souri Compromise  was  unconstitutional;  that  the 
power  of  Congress  to  govern  Territories  was  subor- 
dinate to  its  obligation  to  protect  private  right  in 
property. 

This  decision  had  the  effect  of  consolidating  all  op- 
ponents of  slavey,  of  the  extension  of  slave  territory, 
of  the  Fugitive  Slave  Act  into  one  party,  and  resulted 
in  the  election  of  Lincoln  as  President.  Then  fol- 
lowed the  secession  of  eleven  States  and  the  Civil 
War.  Lincoln,  in  September,  1862,  issued  a  proclama- 
tion warning  inhabitants  of  the  seceding  States  that 
on  the  first  of  January,  1863,  slaves  in  all  States  or 
parts  of  States  then  in  rebellion  would  be  declared 
free.  On  the  day  named  the  Emancipation  Proclama- 
tion was  issued  "as  a  fit  and  necessary  war  measure 
for  suppressing  said  rebellion."  Two  years  later  the 
13th  Amendment  was  submitted  by  Congress,  and 


RATIFICATION   AND  AMENDMENTS  229 

proclaimed    as   ratified   and   in   force    December   18, 
1865. 

Article  XIII. — Neither  slavery  nor  involuntary  ser- 
vitude, except  as  a  punishment  for  crimes  whereof 
the  party  shall  have  been  duly  convicted,  shall  exist 
within  the  United  States,  or  any  place  subject  to  their 
jurisdiction. 

War  being  over,  and  Congress  struggling  with  the 
perplexing  problems  of  reconstructing  the  govern- 
ments of  the  States  lately  in  rebellion,  the  status  of  the 
freedmen  presented  one  of  the  most  difficult  phases. 
The  Dred  Scott  decision  had  declared  that  a  Negro — 
not  necessarily  a  slave — was  not  a  citizen,  and  here 
were  millions  of  them  whose  status  must  be  deter- 
mined before  reconstruction  could  progress  definitely 
or  far.  It  was  accordingly  proposed  by  Congress  in 
June,  1866,  to  amend  the  Constitution  to  effect  this 
and  other  questions  involved  in  reconstruction,  but 
it  was  not  until  July,  1868,  that  the  Secretary  of  State 
issued  a  certificate  that  the  14th  Amendment  had  been 
sufficiently  ratified  and  was  in  effect. 

Article  XIV,  Section  1. — All  persons  born  or  nat- 
uralized in  the  United  States,  and  subject  to  the  juris- 
diction thereof,  are  citizens  of  the  United  States  and 
of  the  State  wherein  they  reside.  No  State  shall  make 
or  enforce  any  law  which  shall  abridge  the  privileges 
or  immunities  of  citizens  of  the  United  States;  nor 
shall  any  State  deprive  any  person  of  life,  liberty,  or 
property,  without  due  process  of  law ;  nor  deny  to  any 
person  within  its  jurisdiction  the  equal  protection  of 
the  law. 

This  made  the  freedmen  citizens,  and  thereby  gave 
them  a  citizen's  civil  rights;  and  to  fortify  those  rights 
against  another  possible  Dred  Scott  decision,  enumer- 


230  OUR   CONSTITUTION 

ated  those  rights  in  important  particulars.  But  the 
right  to  vote  is  not  necessarily  a  citizen's  right,  "for 
the  suffrage  is  a  political,  not  a  civil  right."  So  the 
Amendment,  in  the  hope  of  inducing  the  Southern 
States  to  grant  their  new  citizens  the  privilege  of  vot- 
ing, further  provided: 

Article  XIV,  Section  2. — Representatives  shall  be 
apportioned  among  the  several  States  according  to 
their  respective  numbers,  counting  the  whole  number 
of  persons  in  each  State,  excluding  Indians  not  taxed. 
But  when  the  right  to  vote  at  any  election  for  the 
choice  of  electors  for  President  and  Vice  President  of 
the  United  States,  Representatives  in  Congress,  the 
Executive  and  Judicial  officers  of  a  State,  or  the  mem- 
bers of  the  Legislature  thereof,  is  denied  to  any  of  the 
male  inhabitants  of  such  State,  being  twenty-one 
years  of  age,  and  citizens  of  the  United  States,  or  in 
any  way  abridged,  except  for  participation  in  rebel- 
lion, or  other  crime,  the  basis  of  representation  therein 
shall  be  reduced  in  the  proportion  which  the  number 
of  such  male  citizens  shall  bear  to  the  whole  number 
of  male  citizens  twenty-one  years  of  age  in  such  State. 

This,  it  was  hoped,  would  be  a  strong  inducement 
to  the  Southern  States  to  grant  the  suffrage  to  the 
Negro;  that,  rather  than  suffer  the  proportional  loss 
of  representation  in  the  House,  they  would  enfran- 
chise the  f  reedman,  and  take  their  chance  in  the  mat- 
ter of  influencing  his  vote.  No  State  passed  laws  en- 
franchising the  Negro,  but  what  effect  this  might  have 
had  on  the  basis  of  representation  there  was  never 
opportunity  to  know,  for  the  15th  Amendment  was 
passed  before  the  next  Constitutional  census  for  ap- 
portionment was  taken. 

The  3d  Section  of  the  14th  Amendment  deals  with 
the  question  of  the  political  disability  of  persons  who 


RATIFICATION   AND  AMENDMENTS  231 

had  taken  part  in  the  rebellion.  It  need  not  be  quoted 
here,  as  the  various  amnesty  Acts  passed  since  have 
disposed  of  that  matter.  The  4th  Section  also  relates 
to  questions  finally  settled:  validity  of  all  debts  in- 
curred in  suppressing  the  rebellion,  and  prohibition  of 
the  United  States  or  any  State  from  assuming  any 
debt  incurred  for  support  of  the  rebellion. 

It  was  soon  evident  that  the  new  citizens  were  not 
to  have  the  franchise  under  the  inducement  held  out 
by  the  14th  Amendment,  and  as  a  majority  of  Con- 
gressmen then  believed  a  vote  was  a  necessary  means 
for  the  Negro  to  secure  and  enjoy  his  civil  rights,  and 
would  act  as  an  aid  for  his  advancement  in  his  new 
relation  to  society,  it  was  next  sought  to  reach  that 
end  by  another  amendment. 

Article  XV. — The  right  of  citizens  of  the  United 
States  to  vote  shall  not  be  denied  or  abridged  by  the 
United  States  or  by  any  State  on  account  of  race, 
color,  or  previous  condition  of  servitude. 

Thus  the  change  in  our  fundamental  law  resulting 
from  the  war  was  completed  by  the  15th  Amendment. 
Considering  only  the  relation  this  change  bore  to  the 
one  subject  which  all  three  of  the  War  Amendments 
dealt  with,  the  status  of  the  Negro,  the  sequence  and 
effect  of  the  Amendments  are  easily  followed :  The  13th 
abolished  slavery ;  the  14th  made  the  Negro  a  citizen ; 
the  15th  gave  him  the  right  to  vote  so  far  as  it  could 
do  so  by  prohibiting  the  States  from  denying  him  that 
right  because  of  his  race,  color,  or  that  he  had  been  a 
slave.  It  was  not  surprising  that  in  those  States 
where  the  Negro  had  been  chattel  for  two  hundred 
years  and  more,  when  the  men  descended  from  genera- 
tions of  slave  owners  regained  control  of  the  govern- 


232  OUH  CONSTITUTION 

ment  of  those  States,  they  should  deprive  the  Negro  of 
at  least  equality  in  what  we  may  call  civic-social  privi- 
leges, such  as  equal  rights  in  hotels  and  theatres,  the 
exercise  of  which  rights  would  throw  the  Negro  into 
close  personal  association  with  the  White.  This  effort 
thus  to  segregate  the  Negro  prompted  Congress  to  pass 
a  number  of  laws  known  as  the  Civil  Rights  Acts,  de- 
signed to  secure  to  the  Negro  those  civic-social  privi- 
leges. As  late  as  1875,  five  years  after  the  adoption 
of  the  15th  Amendment,  a  law  was  made  declaring,  in 
effect,  that  no  State  should  deny  to  the  Negro  full  and 
equal  enjoyment  of  the  accommodations  of  hotels, 
passenger  cars  and  steamboats,  theatres,  etc. 

But  before  this  law  was  passed  the  Supreme  Court 
had  clearly  indicated  its  opinion  that  Congress  could 
not,  even  under  the  14th  Amendment,  interfere  with 
the  rights  of  States  to  regulate  their  purely  domestic 
affairs.  In  the  decision  referred  to — in  what  are 
known  as  the  Slaughter  House  Cases — the  court  up- 
held the  right  of  the  States  to  regulate  their  domestic 
affairs,  and  declared  that  it  was  not  the  purpose  of 
the  14th  Amendment  to  deprive  the  States  of  those 
police  powers;  that  such  powers  remained  with  them 
undiminished;  that  there  is  a  citizenship  of  the  United 
States  and  a  citizenship  of  the  States,  and  that  the 
privileges  and  immunities  belonging  to  the  citizenship 
of  States  rest  where  they  theretofore  rested,  with  the 
States.  "We  do  not  see  in  those  Amendments,"  said 
the  court,  "any  purpose  to  disturb  the  main  features  of 
the  general  system."  But  the  further  Civil  Eights 
Bill  referred  to  was  subsequently  passed,  and  it  is  not 
surprising  that  when  called  upon  to  determine  the 
question  the  Supreme  Court  declared  it  unconstitu- 
tional. 


RATIFICATION   AND   AMENDMENTS  233 

So  it  is  seen  that  the  Negro  has  secured  by  the  War 
Amendments  freedom,  citizenship,  such  civic-social 
rights  as  the  States  are  disposed  to  give  him,  and 
the  right  to  vote,  except  where  that  right  can  be  de- 
nied for  causes  not  relating  to  his  race,  color  or  pre- 
vious condition  of  servitude.  Other  causes  to  dis- 
franchise him  have  been  found,  and  the  right  to  vote 
is,  in  effect,  denied  to  the  Negro  in  some  of  the  States. 
But  there  is  no  doubt  that  when  the  Negro  shows  by 
growth  of  intelligence,  virtue  and  industry  that  he  is 
well  equipped  properly  to  exercise  the  privilege  of 
voting,  denial  of  that  privilege  under  any  pretence  will 
cease. 

There  is  the  Constitution  with  its  Amendments 
which  are  as  "valid  to  all  intents  and  purposes  as 
part  of  this  Constitution."  It  is  the  written  authority 
from  the  people  whereby  the  officers  of  government 
are  clothed  with  power;  it  is  the  bond  of  Union  of 
the  States,  making  them  a  nation;  it  at  once  ordains 
and  defines  government.  Under  its  direction  and  con- 
trol we  have  grown  mightily  in  domain  and  numbers, 
and  have  passed  through  a  century  remarkable  in  all 
the  centuries  of  time  for  its  swift  and  tremendous  in- 
novations in  agriculture,  commerce  and  industry,  yet 
the  Constitution  has  proved  adaptable  to  all  the  de- 
mands of  such  vast  and  varied  changes.  It  has  with- 
stood without  flaw  the  awful  shock  of  prolonged  civil 
war — it  is  pliant  but  unbreakable. 

Too  many  of  us,  perhaps,  in  our  comfortable  assur- 
ance of  security  under  the  Constitution,  are  content 
to  give  but  little  study  to  the  instrument  from  which 
we  derive  that  assurance.  There  is  not  in  existence  a 
political  writing  which  so  much  deserves  thoughtful 


234  OUR   CONSTITUTION 

study  by  every  citizen  of  this  country;  nothing  which 
will  so  richly  repay  study.  If  it  shall  ever  happen, 
which  God  forbid,  that  some  men  in  this  country  at-, 
tempt,  for  selfish  purposes,  to  plot  against  the  rights 
and  liberties  of  others,  their  designs  must  fail  if  those 
against  whom  they  intrigue  know  why  and  how  their 
Constitutional  rights  were  guaranteed,  what  they  are, 
and  how  they  can  be  enforced. 


CHAPTER  IX 

SOME    IMPORTANT    INSPIRATIONS 

IN  preceding  chapters  reference  has  been  made 
from  time  to  time  to  documents  which  make  final 
records  of  the  most  important  political  movements 
leading  up  to  our  Constitution.  All  of  these  are  of 
great  interest  in  themselves,  and  a  knowledge  of  them 
is  helpful  to  a  broad  understanding  of  the  vital  prin- 
ciples of  the  Constitution.  They  enable  us  to  trace 
the  course  of  the  progress  of  religious  and  political 
freedom  for  nearly  six  centuries,  from  the  Great 
Charter  forced  by  the  barons  from  King  John  in  1215, 
to  the  inauguration  of  Washington  in  1789. 

The  famous  documents  whose  texts  follow,  and  of 
whose  origin  and  purpose  some  account  will  be  given, 
are  Magna  Charta  (1215),  Plymouth  Compact  (1620), 
Fundamental  Orders  of  Connecticut  (1639),  Bill  of 
Bights  (Parliament,  1689),  Franklin's  Plan  of  Union 
(1754),  Declaration  of  Bights  (Colonies,  1765),  Decla- 
ration of  Independence  (1776),  and  Ordinance  for  the 
Northwest  Territory  (1787).  These,  followed  by  the 
full  text  of  the  Articles  of  Confederation  and  the  Con- 
stitution, with  its  Amendments,  may  induce  readers 
to  return  to  this  chapter,  from  time  to  time,  with  a 
purpose  of  tracing  some  selected  idea  in  its  progress 
from  Bunnymede  on  the  Thames,  near  Windsor,  to 
the  State  House  in  Philadelphia. 

235 


236  OUR  CONSTITUTION 

To  any  reader  to  whom  such  an  inclination  may 
come  the  present  writer  feels  disposed  to  say,  "follow 
your  inclination."  In  no  other  way,  perhaps,  can  we 
more  surely  gain  a  perfect  understanding  of  the 
words:  "For  citizens  are  not  for  the  sake  of  the  Con- 
suls, nor  a  nation  for  the  King;  but  contrariwise  the 
Consuls  are  for  the  sake  of  the  citizens,  and  the  King 
for  the  sake  of  the  nation.  For  as  a  Commonwealth  is 
not  subordinate  to  laws,  but  laws  to  the  Common- 
wealth; so  men  who  live  according  to  the  law  are  not 
for  the  service  of  the  law-giver,  but  he  for  theirs." 

MAGNA   CHARTA,   1215 

When  Henry  I,  fourth  son  of  William  the  Con- 
queror, became  King  of  England,  in  August,  1100,  he 
voluntarily  published  a  charter  of  rights  which,  more 
than  a  century  later,  was  to  become  the  basis  of  the 
Magna  Charta  involuntarily  subscribed  to  by  King 
John.  A  grandson  of  Henry  I,  Henry  II,  in  order  to 
free  himself  from  dependence  upon  the  powerful 
feudal  lords,  instituted  some  highly  objectionable 
measures  of  finance,  among  them  one  known  as  "scu- 
tage,"  a  tax  collected  as  a  substitute  for  personal  mili- 
tary service.  This  was  doubly  obnoxious  as  a  tax  lev- 
ied without  the  consent  of  those  who  paid,  or  their 
representatives,  and  that  it  enabled  the  King  to  main- 
tain an  army  over  which  he  alone  had  control.  John, 
the  youngest  son  of  Henry  II,  became  King  of  Eng- 
land in  1199,  and  besides  continuing  a  policy  which 
lost  to  the  crown  the  support  of  the  barons,  he  went 
much  further  in  antagonizing  powerful  influences 
both  at  home  and  abroad.  This  gave  to  the  barons 
their  chance  to  force  reforms.  After  the  manner  of 


SOME   IMPORTANT   INSPIRATIONS  237 

their  race,  which  characterized  the  political  acts  of 
their  descendants  in  America  who  petitioned  George 
III,  before  they  fought  him,  five  and  a  half  centuries 
later,  the  barons  petitioned  John  for  redress  of  abuses 
in  the  government,  and  for  a  charter  based  on  that 
of  Henry  I.  The  King  rejected  the  petition,  and  the 
barons  marched  against  him.  They  met,  with  their 
armies,  near  an  island  in  the  Thames,  not  far  from 
Windsor.  The  King  encamped  on  one  bank,  the 
barons  on  the  other,  at  Runnymede,  and  commission- 
ers from  both  camps  met  on  the  island.  Doubtless, 
before  exchanging  political  views  this  highly  interest- 
ing joint  caucus  compared  military  facts  of  a  stern  and 
practical  nature,  for  the  result  was  that  John,  virtu- 
ally a  prisoner  in  his  camp,  consented  to  sign  such  a 
document  as  the  barons  presented  to  him.  That  docu- 
ment, the  Magna  Charta,  foundation  of  English  politi- 
cal and  religious  rights  and  liberties,  follows,  in  the 
text  of  the  translation  used  in  The  English  Constitution, 
by  Sheldon  Anaos.  (A  few  brief  explanations  of  the 
most  unusual  phrases  are  introduced  between 
brackets.) 

JOHN,  by  the  Grace  of  God,  King  of  England,  Lord 
of  Ireland,  Duke  of  Normandy,  Aquitaine,  and  Count 
of  Anjou,  to  his  Archbishops,  Bishops,  Abbots,  Earls, 
Barons,  Justiciaries,  Foresters,  Sheriffs,  Governors, 
Officers,  and  to  all  Bailiffs,  and  his  faithful  subjects, 
greeting.  Know  ye,  that  we,  in  the  presence  of  God, 
and  for  the  salvation  of  our  soul,  and  the  souls  of  all 
our  ancestors  and  heirs,  and  unto  the  honour  of  God 
and  the  advancement  of  Holy  Church,  and  amendment 
of  our  Realm,  by  advice  of  our  venerable  Fathers, 
Stephen,  Archbishop  of  Canterbury,  Primate  of  all 
England  and  Cardinal  of  the  Holy  Roman  Church; 
Henry,  Archbishop  of  Dublin;  William,  of  London; 


238  OUR   CONSTITUTION 

Peter,  of  Winchester;  Jocelin,  of  Bath  and  Glaston- 
bury;  Hugh,  of  Lincoln;  Walter,  of  Worcester;  Wil- 
liam, of  Coventry;  Benedict,  of  Rochester — Bishops: 
of  Master  Pandulph,  Sub-Deacon  and  Familiar  of  our 
Lord  the  Pope;  Brother  Aymeric,  Master  of  the  Knights- 
Templars  in  England;  and  of  the  noble  Persons,  Wil- 
liam Marescall,  Earl  of  Pembroke;  William,  Earl  of 
Salisbury;  William,  Earl  of  Warren;  William,  Earl  of 
Arundel;  Alan  de  Galloway,  Constable  of  Scotland; 
Warin  FitzGerald,  Peter  FitzHerbert,  and  Hubert  de 
Burgh,  Seneschal  of  Poitou ;  Hugh  de  Neville,  Matthew 
FitzHerbert,  Thomas  Basset,  Alan  Basset,  Philip  of 
Albiney,  Robert  de  Roppell,  John  Mareschal,  John 
FitzHugh,  and  others,  our  liegemen,  have,  in  the  first 
place,  granted  to  God,  and  by  this  our  present  Charter 
confirmed,  for  us  and  our  heirs  for  ever: — 

1.  That  the  Church  of  England  shall  be  free,  and 
have  her  whole  rights,  and  her  liberties  inviolable; 
and  we  will  have  them  so  observed,  that  it  may  appear 
thence  that  the  freedom  of  elections,  which  is  reck- 
oned chief  and  indispensable  to  the  English  Church, 
and  which  we  granted  and  confirmed  by  our  Charter, 
and  obtained  the  confirmation  of  the  same  from  our 
Lord  the  Pope  Innocent  III.,  before  the  discord  be- 
tween us  and  our  barons,  was  granted  of  mere  free 
will;  which  Charter  we  shall  observe,  and  we  do  will 
it  to  be  faithfully  observed  by  our  heirs  for  ever. 

2.  We  also  have  granted  to  all  the  freemen  of  our 
kingdom,  for  us  and  for  our  heirs  for  ever,  all  the  un- 
derwritten liberties,  to  be  had  and  holden  by  them  and 
their  heirs,  of  us  and  our  heirs  for  ever:  If  any  of  our 
earls,  or  barons,  or  others,  who  hold  of  us  in  chief  by 
military  service,  shall  die,  and  at  the  time  of  his  death 
his  heir  shall  be  of  full  age,  and  owe  a  relief,  he  shall 
have  his  inheritance  by  the  ancient  relief — that  is  to 
say,  the  heir  or  heirs  of  an  earl,  for  a  whole  earldom, 
by  a  hundred  pounds ;  the  heir  or  heirs  of  a  baron,  for 
a  whole  barony,  by  a  hundred  pounds;  the  heir  or  heirs 
of  a  knight,  for  a  whole  knight's  fee,  by  a  hundred 
shillings  at  most;  and  whoever  oweth  less  shall  give 
less,  according  to  the  ancient  custom  of  fees. 


SOME    IMPORTANT   INSPIRATIONS  239 

3.  But  if  the  heir  of  any  such  shall  be  under  age, 
and  shall  be  in  ward,  when  he  comes  of  age  he  shall 
have  his  inheritance  without  relief  and  without  fine. 

4.  The  keeper  of  the  land  of  such  an  heir  being 
under  age,  shall  take  of  the  land  of  the  heir  none  but 
reasonable  issues,  reasonable  customs,  and  reasonable 
services,  and  that  without  destruction  and  waste  of  his 
men  and  his  goods;  and  if  we  commit  the  custody  of 
any  such  lands  to  the  sheriff,  or  any  other  who  is  an- 
swerable to  us  for  the  issues  of  the  land,  and  he  shall 
make  destruction  and  waste  of  the  lands  which  he 
hath  in  custody,  we  will  take  of  him  amends,  and  the 
land  shall  be  committed  to  two  lawful  and  discreet 
men  of  that  fee,  who  shall  answer  for  the  issues  to 
us,  or  to  him  to  whom  we  shall  assign  them;  and  if 
we  sell  or  give  to  any  one  the  custody  of  any  such 
lands,  and  he  therein  make  destruction  or  waste,  he 
shall  lose  the  same  custody,  which  shall  be  committed 
to  two  lawful  and  discreet  men  of  that  fee,  who  shall 
in  like  manner  answer  to  us  as  aforesaid. 

5.  But  the  keeper,  so  long  as  he  shall  have  the  cus- 
tody of  the  land,  shall  keep  up  the  houses,  parks,  war- 
rens, ponds,  mills,  and  other  things  pertaining  to  the 
land,  out  of  the  issues  of  the  same  land;  and  shall  de- 
liver to  the  heir,  when  he  comes  of  full  age,  his  whole 
land,  stocked  with  ploughs  and  carriages,  according 
as  the  time  of  wainage  shall  require,  and  the  issues  of 
the  land  can  reasonably  bear. 

6.  Heirs  shall  be  married  without  disparagement, 
and  so  that  before  matrimony  shall  be  contracted, 
those  who  are  near  in  blood  to  the  heir  shall  have 
notice. 

7.  A  widow,  after  the  death  of  her  husband,  shall 
forthwith  and  without  difficulty  have  her  marriage 
and  inheritance;  nor  shall  she  give  anything  for  her 
dower,  or  her  marriage,  or  her  inheritance,  which  her 
husband  and  she  held  at  the  day  of  his  death;  and 
she  may  remain  in  the  mansion  house  of  her  husband 
forty  days  after  his  death,   within   which  time  her 
dower  shall  be  assigned. 

8.  No  widow  shall  be  distrained  to  marry  herself, 


240  OUR   CONSTITUTION 

so  long  as  she  has  a  mind  to  live  without  a  husband; 
but  yet  she  shall  give  security  that  she  will  not  marry 
without  our  assent,  if  she  hold  of  us;  or  without  the 
consent  of  the  lord  of  whom  she  holds,  if  she  hold  of 
another. 

9.  Neither  we  nor  our  bailiffs  shall  seize  any  land 
or  rent  for  any  debt  so  long  as  the  chattels  of  the 
debtor  are  sufficient  to  pay  the  debt ;  nor  shall  the  sure- 
ties of  the  debtor  be  distrained  so  long  as  the  prin- 
cipal debtor  has  sufficient  to  pay  the  debt;  and  if  the 
principal  debtor  shall  fail  in  the  payment  of  the  debt, 
not  having  wherewithal  to  pay  it,  then  the  sureties 
shall  answer  the  debt ;  and  if  they  will  they  shall  have 
the  lands  and  rents  of  the  debtor,  until  they  shall  be 
satisfied  for  the  debt  which  they  paid  for  him,  unless 
the    principal    debtor    can    show    himself    acquitted 
thereof  against  the  said  sureties. 

10.  If  any  one  have  borrowed  anything  of  the  Jews, 
more  or  less,  and  die  before  the  debt  be  satisfied, 
there  shall  be  no  interest  paid  for  that  debt,  so  long 
as  the  heir  is  under  age,  of  whomsoever  he  may  hold; 
and  if  the  debt  falls  into  our  hands,  we  will  only  take 
the  chattel  mentioned  in  the  deed. 

11.  And  if  any  one  shall  die  indebted  to  the  Jews, 
his  wife  shall  have  her  dower  and  pay  nothing  of  that 
debt;  and  if  the  deceased  left  children  under  age,  they 
shall  have  necessaries  provided  for  them,  according  to 
the  tenement  of  the  deceased;  and  out  of  the  residue 
the  debt  shall  be  paid,  saving,  however,  the  service 
due  to  the  lords,  and  in  like  manner  shall  it  be  done 
touching  debts  due  to  others  than  the  Jews. 

12.  No  scutage  or  aid  shall  be  imposed  in  our  king- 
dom, unless  by  the  general  council  of  our  kingdom; 
except  for  ransoming  our  person,  making  our  eldest 
son  a  knight,  and  once  for  marrying  our  eldest  daugh- 
ter; and  for  these  there  shall  be  paid  no  more  than  a 
reasonable  aid.    In  like  manner  it  shall  be  concerning 
the  aids  of  the  City  of  London. 

13.  And  the  City  of  London  shall  have  all  its  an- 
cient liberties  and  free  customs,  as  well  by  land  as  by 
water;  furthermore,  we  will  and  grant  that  all  other 


SOME   IMPORTANT   INSPIRATIONS  241 

cities  and  boroughs,  and  towns  and  ports,  shall  have 
all  their  liberties  and  free  customs. 

14.  And  for  holding  the  general  council  of  the  king- 
dom concerning  the  assessment  of  aids,  except  in  the 
three  cases  aforesaid,  and  for  the  assessing  of  scti- 
tages,  we  shall  cause  to  be  summoned  the  archbishops, 
bishops,  abbots,  earls,  and  greater  barons  of  the  realm, 
singly  by  our  letters.    And  furthermore,  we  shall  cause 
to  be  summoned  generally,  by  our  sheriffs  and  bailiffs, 
all  others  who  hold  of  us  in  chief,  for  a,  certain  day, 
that  is  to  say,  forty  days  before  their  meeting  at  least, 
and  to  a  certain  place ;  and  in  all  letters  of  such  sum- 
mons we  will  declare  the  cause  of  such  summons.    And 
summons  being  thus  made,  the  business  shall  proceed 
on  the  day  appointed,  according  to  the  advice  of  such 
as  shall  be  present,  although  all  that  were  summoned 
come  not. 

15.  We  will  not  for  the  future  grant  to  anyone  that 
he  may  take  aid  of  his  own  free  tenants,  unless  to  ran- 
som his  body,  and  to  make  his  eldest  son  a  knight,  and 
once  to  marry  his  eldest  daughter;  and  for  this  there 
shall  be  only  paid  a  reasonable  aid. 

16.  No  man  shall  be  distrained  to  perform  more 
service  for  a  knight's  fee,  or  other  free  tenement,  than 
is  due  from  thence. 

17.  Common  pleas  shall  not  follow  our  court,  but 
shall  be  hoi  den  in  some  place  certain. 

18.  Trials  upon  the  Writs  of  Novel  Disseisin  (dis- 
possession) and  of  Mort  d'ancestor  (disputed  posses- 
sion of  land),  and  of  Darrein  Presentment  (the  last 
grant  of  land  by  the  lord  to  a  vassal),  shall  not  be 
taken,  but  in  their  proper  counties,  and  after  this  man- 
ner:   We,  or  if  we  should  be  out  of  the  realm,  our 
chief  justiciary,  will  send   two    justiciaries    through 
every  county  four  times  a  year,  who,  with  four  knights 
of  each  county,  chosen  by  the  county,  shall  hold  the 
said  assizes  (here  the  word  assizes  means  a  court  in 
which  a  number  of  knights  sat  with  a  justice)  in  the 
county,  on  the  day,  and  at  the  place  appointed. 

19.  And  if  any  matters  cannot  be  determined  on 
the  day  appointed  for  holding  the  assizes  in  each 


242  OUR  CONSTITUTION 

county,  so  many  of  the  knights  and  freeholders  as  have 
been  at  the  assizes  aforesaid  shall  stay  to  decide  them 
as  is  necessary,  according  as  there  is  more  or  less 
business. 

20.  A  freeman  shall  not  be  amerced  (fined)  for  a 
small  offence,  but  only  according  to  the  degree  of  the 
offence;  and  for  a  great  crime  according  to  the  hein- 
ousness  of  it,  saving  to  him  his  contenement  (subsist- 
ence according  to  his  rank) ;  and  after  the  same  manner 
a  merchant,  saving  to  him  his  merchandise.    And  a 
villein  shall  be  amerced  after  the  same  manner,  sav- 
ing to  him  his  wainage,  if  he  falls  under  our  mercy; 
and  none  of  the    aforesaid    amerciaments    shall    be 
assessed  but  by  the  oath  of  honest  men  in  the  neigh- 
bourhood. 

21.  Earls  and  barons  shall  not  be  amerced  but  by 
their  peers,  and  after  the  degree  of  the  offence. 

22.  No  ecclesiastical  person  shall  be  amerced  for 
his  lay  tenement,  but  according  to  the  proportion  of 
the  others  aforesaid,  and  not  according  to  the  value 
of  his  ecclesiastical  benefice. 

23.  Neither  a  town  nor  any  tenant  shall  be  dis- 
trained to  make  bridges  or  embankments,  unless  that 
anciently  and  of  right  they  are  bound  to  do  it. 

24.  No  sheriff,  constable,  coroner,  or  other  our  bai- 
liffs, shall  hold  "Pleas  of  the  Crown"  (criminal  suits  in 
the  name  of  the  Grown). 

25.  All  counties,  hundreds,  wapentakes  (county  di- 
vision, much  the  same  as  township)  and  trethings,  shall 
stand  at  the  old  rents,  without  any  increase,  except  in 
our  demesne  manors. 

26.  If  anyone  holding  of  us  a  lay  fee  die,  and  the 
sheriff,  or  our  bailiffs,  show  our  letters  patent  of  sum- 
mons for  debt  which  the  dead  man  did  owe  to  us,  it 
shall  be  lawful  for  the  sheriff  or  our  bailiff  to  attach 
and  register  the  chattels  of  the  dead,  found  upon  his 
lay  fee,  to  the  amount  of  the  debt,  by  the  view  of 
lawful  men,  so  as  nothing  be  removed  until  our  whole 
clear  debt  be  paid;  and  the  rest  shall  be  left  to  the 
executors  to  fulfil  the  testament  of  the  dead;  and  if 
there  be  nothing  due  from  him  to  us,  all  the  chattels 


SOME   IMPORTANT   INSPIRATIONS  243 

shall  go  to  the  use  of  the  dead,  saving  to  his  wife  and 
children  their  reasonable  shares  (to  his  wife  one-third, 
children  one-third). 

27.  If  any  freeman  shall  die  intestate,  his  chattels 
shall  be  distributed  by  the  hands  of  his  nearest  rela- 
tions and   friends,  by    view    of   the   Church,    saving 
to   everyone   his  debts   which  the   deceased  owed  to 
him. 

28.  No  constable  or  bailiff  of  ours  shall  take  corn 
or  other  chattels  of  any  man  unless  he  presently  give 
him  money  for  it,  or  hath  respite  of  payment  by  the 
good-will  of  the  seller. 

29.  No  constable  shall  distrain  any  knight  to  give 
money  for  castle-guard,  if  he  himself  will  do  it  in  his 
person,  or  by  another  able  man,  in  case  he  cannot  do 
it  through  any  reasonable  cause.    And  if  we  have  car- 
ried or  sent  him  into  the  army,  he  shall  be  free  from 
such  guard  for  the  time  he  shall  be  in  the  army  by  our 
command. 

30.  No  sheriff  or  bailiff  of  ours,  or  any  other,  shall 
take  horses  or  carts  of  any  freeman  for  carriage,  with- 
out the  assent  of  the  said  freeman. 

31.  Neither  shall  we  nor  our  bailiffs  take  any  man's 
timber  for  our  castles  or  other  uses,  unless  by  the  con- 
sent of  the  owner  of  the  timber. 

32.  We  will  retain  the  lands  of  those  convicted  of 
felony  only  one  year  and  a  day,  and  then  they  shall  be 
delivered  to  the  lord  of  the  fee. 

33.  All  kydells  for  the  time  to  come  shall  be  put 
down  in  the  rivers  of    Thames    and    Medway,    and 
throughout  all  England,  except  upon   the    sea-coast. 
(Commons  shall  not  be  enclosed.) 

34.  The  writ  which  is  called  prcecipe,  for  the  future, 
shall  not  be  made  out  to  anyone,  of  any  tenement, 
whereby  a  freeman  may  lose  his  court. 

35.  There  shall  be  one  measure  of  wine  and  one 
of  ale  through  our  whole  realm;  and  one  measure  of 
corn,  that  is  to  say,  the  London  quarter;  and  one 
breadth  of  dyed  cloth,  and  russets,  and  haberjeets,  that 
is  to  say,  two  ells  within  the  lists;  and  it  shall  be  of 
weights  as  it  is  of  measures. 


244  OUR    CONSTITUTION 

36.  Nothing   from   henceforth    shall    be   given   or 
taken  for  a  writ  of  inquisition  of  life  or  limb,  but  it 
shall  be  granted  freely,  and  not  denied.     (No  charge 
shall  be  made  for  a  writ  like  our  writ  of  habeas  cor- 
pus.) 

37.  If  any  do  hold  of  us  by  fee-farm,  or  by  socage, 
or  by  burgage,  and  he  hold  also  lands  of  any  other  by 
knight's  service,  we  will  not  have  the  custody  of  the 
heir  or  land,  which  is  holden  of  another  man's  fee  by 
reason  of  that  fee-farm,  socage  (somewhat,  like  farming 
land  on  "shares")  or  burgage;  neither  will  we  have  the 
custody  of  the  fee-farm,  or  socage,  or  burgage,  unless 
knight's  service  was  due  to  us  out  of  the  same  fee- 
farm.    We  will  not  have  the  custody  of  an  heir,  nor 
of  any  land  which  he  holds  of  another  by  knight's 
service,  by  reason  of  any  petty  serjeanty  (giving  a 
weapon  of  war  in  acknowledgment  of  land  held),  by 
which  he  holds  of  us,  by  the  service  of  paying  a  knife, 
an  arrow,  or  the  like. 

38.  No  bailiff  from  henceforth  shall  put  any  man 
to  his  law  (put  him  upon  oath)  upon  his  own  bare 
saying,  without  credible  witnesses  to  prove  it. 

39.  No  freeman  shall  be  taken  or  imprisoned,  or 
disseised,  or  outlawed,  or  banished,  or  any  ways  de- 
stroyed, nor  will  we  pass  upon  him,  nor  will  we  send 
upon  him,  unless  by  the  lawful  judgment  of  his  peers, 
or  by  the  law  of  the  land. 

40.  We  will  sell  to  no  man,  we  will  not  deny  to  any 
man,  either  justice  or  right. 

41.  All  merchants  shall  have  safe  and  secure  con- 
duct, to  go  out  of,  and  to  come  into  England,  and  to 
stay  there  and  to  pass  as  well  by  land  as  by  water,  for 
buying  and  selling  by  the  ancient  and  allowed  customs, 
without  any  unjust  tolls;  except  in  time  of  war,  or 
when  they  are  of  any  nation  at  war  with  us.    And  if 
there  be  found  any  such  in  our  land,  in  the  beginning 
of  the  war,  they  shall  be  attached,  without  damage  to 
their  bodies  or  goods,  until  it  be  known  unto  us,  or  our 
chief  justiciary,  how  our  merchants  be  treated  in  the 
nation  at  war  with  us;  and  if  ours  be  safe  there,  the 
others  shall  be  safe  in  our  dominions. 


SOME    IMPORTANT    INSPIRATIONS  245 

42.  It  shall  be  lawful,  for  the  time  to  come,  for 
anyone  to  go  out  of  our  kingdom,  and  return  safely 
and  securely  by  land  or  by  water,  saving  his  allegiance 
to  us;  unless  in  time  of  war,  by  some  short  space,  for 
the  common  benefit  of  the  realm,  except  prisoners  and 
outlaws,  according  to  the  law  of  the  land,  and  people 
in  war  with  us,  and  merchants  who  shall  be  treated  as 
is  above  mentioned.     (The  Crown  had  exercised  the 
power  to  confine  subjects  within  the  kingdom.) 

43.  If  any  man  hold  of  any  escheat,  as  of  the  honour 
of  Wallingford,  Nottingham,  Boulogne,  Lancaster,  or 
of  other  escheats  which  be  in  our  hands,  and  are  baro- 
nies, and  die,  his  heir  shall  give  no  other  relief,  and 
perform  no  other  service  to  us  than  he  would  to  the 
baron,  if  it  were  in  the  baron's  hand;  and  we  will  hold 
it  after  the  same  manner  as  the  baron  held  it.    (This 
provision  became  obsolete  when  the  Feudal  system 
was  abolished  under  Charles  II.) 

44.  Those  men  who  dwell  without  the  forest  from 
henceforth  shall  not  come  before  our  justiciaries  of  the 
forest,  upon  common  summons,  but  such  as  are  im- 
pleaded,  or  are  sureties  for  any  that  are  attached  for 
something  concerning  the  forest.    (Royal  forests.) 

45.  We  will  not  make  any  justices,  constables,  sher- 
iffs, or  bailiffs,  but  of  such  as  know  the  law  of  the 
realm  and  mean  duly  to  observe  it. 

46.  All  barons  who  have  founded  abbeys,  which 
they  hold  by  charter  from  the  kings  of  England,  or  by 
ancient  tenure,  shall  have  the  keeping  of  them,  when 
vacant,  as  they  ought  to  have. 

47.  All  forests  that  have  been  made  forests  in  our 
time  shall  forthwith  be  disforested;  and  the  same  shall 
be  done  with  the  water-banks  that  have  been  fenced  in 
by  us  in  our  time. 

48.  All  evil  customs  concerning  forests,  warrens, 
foresters,  and  warreners,  sheriffs   and   their   officers, 
water-banks  and  their  keepers,  shall  forthwith  be  in- 
quired into  in  each  county,  by  twelve  sworn  knights 
of  the  same  county,  chosen  by  creditable  persons  of 
the  same  county;  and  within  forty  days  after  the  said 
inquest  be  utterly  abolished,  so  as  never  to  be  restored ; 


246  OUR   CONSTITUTION 

so  as  we  are  first  acquainted  therewith,  or  our  jus- 
ticiary, if  we  should  not  be  in  England. 

49.  We  will  immediately  give  up  all  hostages  and 
charters  delivered  unto  us  by  our  English  subjects,  as 
securities  for  their  keeping  the  peace,  and  yielding  us 
faithful  service. 

50.  We  will  entirely  remove  from  their  bailiwicks 
the  relations  of  Gerard  de  Atheyes,  so  that  for  the 
future  they  shall  have  no  bailiwick  in  England;  we  will 
also  remove  Engelard  de  Cygony,  Andrew,  Peter,  and 
Gyon,  from  the  Chancery;  Gyon  de  Cygony,  Geoffrey 
de  Martyn,  and  his  brothers;  Philip  Mark,  and  his 
brothers,  and  his  nephew,  Geoffrey,  and  their  whole 
retinue. 

51.  As  soon  as  peace  is  restored,  we  will  send  out 
of  the  kingdom  all  foreign  knights,  cross-bowmen,  and 
stipendiaries,  who  are  come  with  horses  and  arms  to 
the  molestation  of  our  people. 

52.  If  anyone  has  been  dispossessed  or  deprived  by 
us,  without  the  lawful  judgment  of  his  peers,  of  his 
lands,  castles,  liberties,  or  right,  we  will  forthwith 
restore  them  to  him;  and  if  any  dispute  arise  upon  this 
head,  let  the  matter  be  decided  by  the  five-and-twenty 
barons  hereafter  mentioned,  for  the  preservation  of 
the  peace.    And  for  all  those  things  of  which  any  per- 
son has,  without  the  lawful  judgment  of  his  peers, 
been  dispossessed  or  deprived,  either  by  our  father 
King  Henry,  or  our  brother  King  Kichard,  and  which 
we  have  in  our  hands,  or  are  possessed  by  others,  and 
we  are  bound  to  warrant  and  make  good,  we  shall  have 
a  respite  till  the  term  usually  allowed  the  crusaders; 
excepting  those  things  about  which  there  is  a  plea  de- 
pending, or  whereof  an  inquest  hath  been  made,  by 
our  order  before  we  undertook  the  crusade;  but  as 
soon  as  we  return  from  our  expedition,  or  if  perchance 
we  tarry  at  home  and  do  not  make  our  expedition,  we 
will  immediately  cause  full  justice  to  be  administered 
therein. 

53.  The  same  respite  we  shall  have,  and  in  the  same 
manner,  about  administering  justice,  disafforesting  or 
letting  continue  the  forests,  which  Henry  our  father, 


SOME   IMPORTANT   INSPIRATIONS  247 

and  our  brother  Richard,  have  afforested;  and  the  same 
concerning  the  wardship  of  the  lands  which  are  in 
another's  fee,  but  the  wardship  of  which  we  have 
hitherto  had,  by  reason  of  a  fee  held  of  us  by  knight's 
service;  and  for  the  abbeys  founded  in  any  other  fee 
than  our  own,  in  which  the  lord  of  the  fee  says  he  has 
a  right;  and  when  we  return  from  our  expedition,  or 
if  we  tarry  at  home,  and  do  not  make  our  expedition, 
we  will  immediately  do  full  justice  to  all  the  complain- 
ants in  this  behalf. 

54.  No   man   shall  be  taken   or  imprisoned  upon 
the  appeal  (appeal,  as  here  used,  means  an  accusation) 
of  a  woman,  for  the  death  of  any  other  than  her  hus- 
band. 

55.  All  unjust  and  illegal  fines  made  by  us,  and 
all  amerciaments  imposed  unjustly  and  contrary  to 
the  law  of  the  land,  shall  be  entirely  given  up,  or  else 
be  left  to  the  decision  of  the  five-and-twenty  barons 
hereafter  mentioned,  for  the  preservation  of  the  peace, 
or  of  the  major  part  of  them,  together  with  the  afore- 
said Stephen,  Archbishop  of  Canterbury,  if  he  can  be 
present,  and  others  whom  he  shall  think  fit  to  invite; 
and  if  he  cannot  be  present,  the  business  shall  not- 
withstanding go  on  without  him;  but  so  that  if  one 
or  more  of  the  aforesaid  five-and-twenty  barons  be 
plaintiffs  in  the  same  cause,  they  shall  be  set  aside 
as  to  what  concerns  this  particular  affair,  and  others 
be  chosen  in  their  room,  out  of  the  said  five-and-twenty, 
and  sworn  by  the  rest  to  decide  the  matter. 

56.  If  we  have  disseised  or  dispossessed  the  Welsh 
of  any  lands,  liberties,  or  other  things,  without  the 
legal  judgment  of  their  peers,  either  in  England  or  in 
Wales,  they  shall  be  immediately  restored  to  them; 
and  if  any  dispute  arise  upon  this  head,  the  matter 
shall  be  determined  in  the  Marches  by  the  judgment 
of  their  peers;  for  tenements  in  England  according  to 
the  law  of  England,  for  tenements  in  Wales  according 
to  the  law  of  Wales,  for  tenements  of  the  Marches 
according  to  the  law  of  the  Marches:  the  same  shall 
the  Welsh  do  to  us  and  our  subjects. 

57.  As  for  all  those  things  of  which  a  Welshman 


248  OUR   CONSTITUTION 

bath,  without  the  lawful  judgment  of  his  peers,  been 
disseised  or  deprived  of  by  King  Henry  our  father, 
or  our  brother  King  Richard,  and  which  we  either  have 
in  our  hands  or  others  are  possessed  of,  and  we  are 
obliged  to  warrant  it,  we  shall  have  a  respite  till  the 
time  generally  allowed  the  crusaders;  excepting  those 
things  about  which  a  suit  is  depending,  or  whereof  an 
inquest  has  been  made  by  our  order,  before  we  under- 
took the  crusade;  but  when  we  return,  or  if  we  stay 
at  home  without  performing  our  expedition,  we  will 
immediately  do  them  full  justice,  according  to  the  laws 
of  the  Welsh  and  of  the  parts  before  mentioned. 

58.  We  will  without  delay  dismiss  the  son  of  Llew- 
ellin,  and  all  the  Welsh  hostages,  and  release  them 
from  the  engagements  they  have  entered  into  with  us 
for  the  preservation  of  the  peace. 

59.  We  will  treat  with  Alexander,  King  of  Scots, 
concerning  the  restoring  his  sisters  and  hostages,  and 
his  right  and  liberties,  in  the  same  form  and  manner 
as  we  shall  do  to  the  rest  of  our  barons  of  England; 
unless  by  the  charters  which  we  have  from  his  father, 
William,  late  King  of  Scots,  it  ought  to  be  otherwise; 
and  this  shall  be  left  to  the  determination  of  his  peers 
in  our  court. 

60.  All  the  aforesaid  customs  and  liberties,  which 
we  have  granted  to  be  holden  in  our  kingdom,  as  much 
as  it  belongs  to  us,  all  people  of  our  kingdom,  as  well 
clergy  as  laity,    shall    observe,    as   far   as    they   are 
concerned,  toward  their  dependents. 

61.  And  whereas,  for  the  honour  of  God  and  the 
amendment  of  our  kingdom,  and  for  the  better  quiet- 
ing the  discord  that  has  arisen  between  us  and  our 
barons,  we  have  granted  all  these  things  aforesaid; 
willing  to  render  them  firm  and  lasting,  we  do  give 
and  grant  our  subjects    the    underwritten    security, 
namely,  that  the  barons  may  choose  five-and-twenty 
barons  of  the  kingdom,  whom  they  think  convenient; 
who  shall  take  care,  with  all  their  might,  to  hold  and 
observe,  nnd  cause  to  be  observed,  the  peace  and  liber- 
ties we  have  granted  them,  and  by  this  our  present 
Charter  confirmed  in  this  manner;  that  is  to  say,  that 


SOME   IMPORTANT   INSPIRATIONS  249 

if  we,  our  justiciary,  our  bailiffs,  or  any  of  our  officers, 
shall  in  any  circumstance  have  failed  in  the  perform- 
ance of  them  toward  any  person,  or  shall  have  broken 
through  any  of  these  articles  of  peace  and  security, 
and  the  offence  be  notified  to  four  barons  chosen  out 
of  the  five-and-twenty  before  mentioned,  the  said  four 
barons  shall  repair  to  us,  or  our  justiciary,  if  we  are 
out  of  the  realm,  and,  laying  open  the  grievance,  shall 
petition  to  have  it  redressed  without  delay:  and  if  it 
be  not  redressed  by  us,  or  if  we  should  chance  to  be 
out  of  the  realm,  if  it  should  not  be  redressed  by  our 
justiciary  within  forty  days,  reckoning  from  the  time 
it  has  been  notified  to  us,  or  to  our  justiciary  (if  we 
should  be  out  of  the  realm),  the  four  barons  aforesaid 
shall  lay  the  cause  before  the  rest  of  the  five-and- 
twenty  barons;  and  the  said  five-and-twenty  barons, 
together  with  the  community  of  the  whole  kingdom, 
shall  distrain  and  distress  us  in  all  the  ways  in  which 
they  shall  be  able,  by  seizing  our  castles,  lands,  pos- 
sessions, and  in  any  other  manner  they  can,  till  the 
grievance  is  redressed,  according  to  their  pleasure; 
saving  harmless  our  own  person,  and  the  persons  of 
our  Queen  and  children;  and  when  it  is  redressed  they 
shall  behave  to  us  as  before.  And  any  person  what- 
soever in  the  kingdom  may  swear  that  he  will  obey 
the  orders  of  the  five-and-twenty  barons  aforesaid  in 
the  execution  of  the  premises,  and  will  distress  us, 
jointly  with  them,  to  the  utmost  of  his  power;  and  we 
give  public  and  free  liberty  to  anyone  that  shall  please 
to  swear  to  this,  and  never  will  hinder  any  person  from 
taking  the  same  oath. 

62.  As  for  all  those  of  our  subjects  who  will  not, 
of  their  own  accord,  swear  to  join  the  five-and-twenty 
barons  in  distraining  and  distressing  us,  we  will  issue 
orders  to  make  them  take  the  same  oath  as  aforesaid. 
And  if  any  one  of  the  five-and-twenty  barons  dies,  or 
goes  out  of  the  kingdom,  or  is  hindered  any  other  way 
from  carrying  the  things  aforesaid  into  execution,  the 
rest  of  the  said  five-and-twenty  barons  may  choose 
another  in  his  room,  at  their  discretion,  who  shall  be 
sworn  in  like  manner  as  the  rest.  In  all  things  that 


250  OUR   CONSTITUTION 

are  committed  to  the  execution  of  these  five-and- 
twenty  barons,  it',  when  they  are  all  assembled  to- 
gether, they  should  happen  to  disagree  about  any 
matter,  and  some  of  them,  when  summoned,  will  not 
or  cannot  come,  whatever  is  agreed  upon,  or  enjoined, 
by  the  major  part  of  those  that  are  present  shall  be 
reputed  as  firm  and  valid  as  if  all  the  five-and-twenty 
had  given  their  consent;  and  the  aforesaid  five-and- 
twenty  shall  swear  that  all  the  premises  they  shall 
faithfully  observe,  and  cause  with  all  their  power  to 
be  observed.  And  we  will  procure  nothing  from  any- 
one, by  ourselves  nor  by  another,  whereby  any  of 
these  concessions  and  liberties  may  be  revoked  or  less- 
ened; and  if  any  such  thing  shall  have  been  obtained, 
let  it  be  null  and  void ;  neither  will  we  ever  make  use 
of  it  either  by  ourselves  or  any  other.  And  all  the 
ill-will,  indignations,  and  rancours  that  have  arisen 
between  us  and  our  subjects,  of  the  clergy  and  laity, 
from  the  first  breaking  out  of  the  dissensions  between 
us,  we  do  fully  remit  and  forgive:  moreover,  all  tres- 
passes occasioned  by  the  said  dissensions,  from  Easter 
in  the  sixteenth  year  of  our  reign  till  the  restoration 
of  peace  and  tranquillity,  we  hereby  entirely  remit  to 
all,  both  clergy  and  laity,  and  as  far  as  in  us  lies  do 
fully  forgive.  We  have,  moreover,  caused  to  be  made 
for  them  the  letters  patent  testimonial  of  Stephen, 
Lord  Archbishop  of  Canterbury,  Henry,  Lord  Arch- 
bishop of  Dublin,  and  the  bishops  aforesaid,  as  also 
of  Master  Pandulph,  for  the  security  and  concessions 
aforesaid. 

63.  Wherefore  we  will  and  firmly  enjoin,  that  the 
Church  of  England  be  free,  and  that  all  men  in  our 
kingdom  have  and  hold  all  the  aforesaid  liberties, 
rights  and  concessions,  truly  and  peaceably,  freely  and 
quietly,  fully  and  wholly  to  themselves  and  their  heirs, 
of  us  and  our  heirs,  in  all  things  and  places,  for  ever, 
as  is  aforesaid.  It  is  also  sworn,  as  well  on  our  part 
as  on  the  part  of  the  barons,  that  all  the  things  afore- 
said shall  be  observed  in  good  faith,  and  without  evil 
subtilty.  Given  under  our  hand,  in  the  presence  of 
the  witnesses  above  named,  and  many  others,  in  the 


SOME    IMPORTANT    INSPIRATIONS  251 

meadow  called  Runingmede,  between  Windsor  and 
Staines,  the  15th  day  of  June,  in  the  17th  year  of  our 
reign. 

THE    PLYMOUTH   COMPACT 

Some  brief  comment  on  the  nature  of  the  Plymouth 
Compact,  by  several  historians,  was  quoted  in  an  ear- 
lier chapter.  The  document  itself  is  so  simple  that  we 
need  no  aid,  it  would  seem,  for  its  understanding.  A 
number  of  men  agree  to  make  such  laws  as  shall  be 
meet  for  the  government  of  an  adventurous  settle- 
ment on  an  unknown  and  inhospitable  shore.  Those 
who  have  declared  the  Compact  to  be  a  Constitution 
may  hold  such  views  on  the  question  of  what  a  Con- 
stitution is  as  shall  amply  justify  them  in  declaring 
the  Compact  to  be  one.  But  it  does  not  seem  neces- 
sary to  establish  any  such  character  for  the  document 
to  account  for  the  intense  interest  it  has  for  us.  The 
circumstance  of  its  making,  the  characters  of  its  sign- 
ers, the  conditions  surrounding  them  so  long  as  they 
remained  "a  civil  body  politick,"  all  combine  to  lend 
a  romantic  interest  to  the  Compact  which  attaches  to 
no  other  political  document. 

Those  Pilgrims  were  Separatists,  not  Puritans; 
plain  country  folk,  farmers  and  skilled  laborers,  but 
some  with  considerable  education,  and  all  so  firm  in 
their  determination  to  enjoy  religious  liberty  that  they 
gladly  gave  up  every  other  enjoyment — almost  every 
comfort — of  life.  Those  English  Separatists  who 
sailed  in  the  Mayflower  had  been  living  for  some  time 
in  Holland,  religious  refugees;  yet  their  standing  at 
home  seems  not  to  have  been  that  of  a  sect  against 
whom  there  was  great  bitterness.  When  they  found 
conditions  of  living  in  Holland  very  discouraging,  and 
"how  little  good  we  did  or  were  likely  to  do  to  the 


252  OUR  CONSTITUTION 

Dutch  in  reforming  the  Sabbath,"  they  prayed  God 
to  discover  "some  place  unto  us,  though  in  America," 
and  their  prayers  having  been  answered,  even  as  they 
stipulated  they  should  be,  they  sent  agents  to  Eng- 
land to  arrange  for  their  migration. 

That  there  was  no  especial  bitterness  felt  against 
those  Separatists,  even  at  Court,  is  evident,  for  their 
agents  were  well  treated  in  the  matter  by  King 
James's  ministers;  they  were  able  to  borrow  money, 
300  pounds,  without  interest,  for  their  outfitting;  and 
the  King  himself,  being  pleased  to  ask  what  the  Colo- 
nists would  do  in  America,  and  being  told  that  they 
intended  to  fish,  piously  responded,  "So  God  have  my 
soul,  'tis  an  honest  trade;  'twas  the  Apostles'  own  call- 
ing." Thus,  supplied  with  funds,  the  King's  approval, 
even  his  blessing,  the  Mayflower  company  sailed;  ar- 
rived at  Cape  Cod  November  21,  1620;  made  their 
Compact,  which  was  signed  by  all  the  male  adults, 
who  numbered  forty-one,  and  a  month  later  landed 
and  settled  at  Plymouth,  across  the  mouth  of  Cape 
Cod  Bay.  From  then  until  1639  the  adult  male  church 
members,  meeting  in  general  assembly,  enacted  laws 
for  the  Colony.  In  1639  a  representative  body  con- 
ducted affairs,  and  continued  to  do  so  until,  in  1691, 
Plymouth  was  merged,  politically,  with  Massachusetts. 

The  text  of  the  Compact  follows : 

In  the  name  of  God,  Amen;  We,  whose  names  are 
underwritten,  the  loyall  subjects  of  our  dread  sover- 
aigne,  King  James,  by  the  grace  of  God,  of  Great 
Britaine,  France  and  Ireland  King,  defender  of  the 
faith,  etc.,  haveing  undertaken,  for  the  glorie  of  God, 
and  advancemente  of  the  Christian  faith  and  honor 
of  our  king  and  countrie,  a  voyage  to  plant  the  first 
colonie  in  the  Northerne  parts  of  Virginia,  doe,  by 


SOME   IMPORTANT   INSPIRATIONS  253 

these  presents,  solemnly  and  mutualty,  in  the  presence 
of  God,  and  one  of  another,  covenant  and  combine 
ourselves  together  into  a  civil  body  politick,  for  our 
better  ordering  and  preservation  and  furtherance  of 
the  ends  aforesaid;  and,  by  vertue  heareof,  to  enacte, 
constitute,  and  frame,  such  just  and  equall  laws,  orde- 
nances,  acts,  constitutions  and  offices,  from  time  to 
time,  as  shall  be  thought  most  meete  and  convenient 
for  the  generall  good  of  the  Colonie.  Unto  which  we 
promise  all  due  submission  and  obedience.  In  witnes 
whereof  we  have  hereunder  subscribed  our  names,  at 
Cap  Codd,  the  llth  of  November,  in  the  year  of  the 
raigne  of  our  sovereigne  lord,  King  James,  of  Eng- 
land, France  and  Ireland  the  eighteenth,  and  of  Scot- 
land the  fifty-fourth,  Anno  Domini,  1620. 


FUNDAMENTAL    ORDERS    OF    CONNECTICUT,    1639 

It  has  been  related  in  a  former  chapter  that  the 
Fundamental  Orders  were  adapted  at  Hartford,  Janu- 
ary 14,  1639,  by  a  general  convention  of  the  planters 
of  the  three  Connecticut  Valley  towns,  Hartford, 
Wethersfield  and  Windsor.  No  further  introduction 
to  their  text  is  required,  but  it  is  suggested  to  read- 
ers to  note  the  similarity  between  the  relations  of  the 
Connecticut  towns  and  the  Commonwealth,  and  the 
several  States  and  the  National  Government.  Alexan- 
der Johnston,  in  his  work  on  Connecticut,  comments 
on  this  most  interestingly:  "In  other  States,  power 
rims  from  the  State  upwards  and  from,  the  State 
downwards;  in  Connecticut,  the  towns  have  always 
been  to  the  Commonwealth  as  the  Commonwealth  to 
the  Union.  It  was  to  be  the  privilege  of  Connecticut 
to  keep  the  notion  of  this  federal  relation  alive  until 
it  could  be  made  the  fundamentaJ  law  of  all  the  Com- 
monwealths in  1787-89.  In  this  respect,  the  life  princi- 


254  OUB  CONSTITUTION 

pie  of  the  American  Union  may  be  traced  straight  back 
to  the  primitive  union  of  the  three  little  settlements 
on  the  bank  of  the  Connecticut  Kiver."  Professor 
Johnston  calls  attention  to  the  further  interesting  fact 
that  a  series  of  orders  passed  by  the  General  Court  de- 
fining and  securing  certain  rights  to  the  towns  re- 
semble in  their  relation  to  the  Fundamental  Orders 
the  relation  of  the  first  ten  Amendments  to  the  Con- 
stitution. The  text  of  the  Fundamental  Orders 
follows: 

Forasmuch  as  it  hath  pleased  the  Allmighty  God 
by  the  wise  disposition  of  his  diuyne  pruidence  so  to 
Order  and  dispose  of  things  that  we  the  Inhabitants 
and  Residents  of  Windsor,  Harteford  and  Wethersfield 
are  now  cohabiting  and  dwelling  in  and  vppon  the 
River  of  Conectecotte  and  the  Lands  thereunto  ad- 
ioyneing;  And  well  knowing  where  a  people  are  gath- 
ered together  the  word  of  God  requires  that  to 
mayntayne  the  peace  and  vnion  of  such  a  people  there 
should  be  an  orderly  and  decent  Gouerment  estab- 
lished according  to  God,  to  order  and  dispose  of  the 
affayres  of  the  people  at  all  seasons  as  occation  shall 
require;  doe  therefore  assotiate  and  conioyne  our 
selues  to  be  as  one  Publike  State  or  Comonwelth;  and 
doe,  for  our  selues  and  our  Successors  and  such  as 
shall  be  adioyned  to  vs  att  any  tyme  hereafter,  enter 
into  Combination  and  Confederation  togather,  to 
mayntayne  and  prsearue  the  liberty  and  purity  of  the 
gospell  of  our  Lord  Jesus,  wch  we  now  prfesse,  as  also 
the  disciplyne  of  the  Churches,  wch  according  to  the 
truth  of  the  said  gospell  is  now  practised  amongst  vs; 
As  also  in  or  Ciuell  Affaires  to  be  guided  and  gouerned 
according  to  such  Lawes,  Rules,  Orders  and  decrees 
as  shall  be  made,  ordered  &  decreed,  as  f olloweth : — 

1.  It  is  Ordered,  sentenced  and  decreed,  that  there 
shall  be  yerely  two  generall  Assemblies  or  Courts,  the 
on  the  second  thursday  in  Aprill,  the  other  the  second 
thursday  in  September,  following;  the  first  shall  be 


SOME   IMPORTANT   INSPIRATIONS  255 

called  the  Courte  of  Election,  wherein  shall  be  yerely 
Chosen  fro  tyme  to  tynie  soe  many  Magestrats  and 
other  publike  Officers  as  shall  be  found  requisitte: 
Whereof  one  to  be  chosen  Gouernour  for  the  yeare 
ensueing  and  vntill  another  be  chosen,  and  noe  other 
Magestrate  to  be  chosen  for  more  than  one  yeare; 
]>ruided  allwayes  there  be  sixe  chosen  besids  the  Gou- 
ornour;  wch  being  chosen  and  sworne  according  to  an 
Oath  recorded  for  that  purpose  shall  haue  power  to 
administer  iustice  according  to  the  Lawes  here  estab- 
lished, and  for  want  thereof  according  to  the  rule  of 
the  word  of  God;  wch  choise  shall  be  made  by  all  that 
are  admitted  freemen  and  haue  taken  the  Oath  of 
Fidel lity,  and  doe  cohabitte  wthin  this  Jurisdiction, 
(hauing  beene  admitted  Inhabitants  by  the  maior  prt 
of  the  Towne  wherein  they  liue,)  or  the  mayor  prte  of 
such  as  shall  be  then  prsent. 

2.  It  is  Ordered,  sentensed  and  decreed,  that  the 
Election  of  the  aforesaid  Magestrats  shall  be  on  this 
manner:  euery  prson  prsent  and  quallified  for  choyse 
shall  bring  in  (to  the  prsons  deputed  to  receaue  the) 
one  single  papr  wth  the  name  of  him  written  in  yt 
whom  he  desires  to  haue  Gouernour,  and  he  that  hath 
the  greatest  nuber  of  papers  shall  be  Gouernor  for 
that  yeare.  And  the  rest  of  the  Magestrats  or  publike 
Officers  to  be  chosen  in  this  manner:  The  Secretary 
for  the  tyme  being  shall  first  read  the  names  of  all 
that  are  to  be  put  to  choise  and  then  shall  seuerally 
nominate  them  distinctly,  and  euery  one  that  would 
haue  the  prson  nominated  to  be  chosen  shall  bring  in 
one  single  paper  written  vppon,  and  he  that  would  not 
haue  him  chosen  shall  bring  in  a  blanke:  and  euery 
one  that  hath  more  written  papers  then  blanks  shall 
be  a  Magistrat  for  that  yeare;  wch  papers  shall  be  re- 
ceaued  and  told  by  one  or  more  that  shall  be  then 
chosen  by  the  court  and  sworne  to  be  f aythf ull  therein ; 
but  in  case  there  should  not  be  sixe  chosen  as  afore- 
said, besids  the  Gouernor,  out  of  those  wch  are  nomin- 
ated, then  he  or  they  wch  haue  the  most  written  paprs 
shall  be  a  Magestrate  or  Magestrats  for  the  ensueing 
yeare,  to  make  vp  the  foresaid  nuber. 


256  OUR  CONSTITUTION 

3.  II;  is  Ordered,  sentenced  and  decreed,  that  the 
Secretary  shall  not  nominate  any  prson,  nor  shall  any 
prson  be  chosen  newly  into  the  Magestracy  wch  was  not 
prpownded  in  some  Generall  Courte  before,  to  be  nom- 
inated the  next  Election;  and  to  that  end  yt  shall  be 

[lawful  1  for  ech  of  the  Townes  aforesaid  by  their  depu- 
[tyes  to  nominate  any  two  who  they  conceaue  fitte  to 

be  put  to  election;  and  the  Couote  may  ad  so  many 

more  as  they  iudge  requisitt. 

4.  It  is  Ordered,  sentenced  and  decreed  that  noe 
prson  be  chosen  Gouernor  aboue  cihce  in  two  yeares, 
and  that  the  Gouernor    be  always  a  rneber    of  some 
approved  congregation,  and  formerly  of  the  Mages- 
tracy wthin  this  Jurisdiction;  and  all  the  Magestrats 
Freemen  of  this  Comonwelth;  and  that  no  Magestrate 
or  other  publike  officer  shall  execute  any  prte  of  his 
or  their  Office  before  they  are  seuerally  sworne,  wch 
shall  be  done  in  the  face  of  the  Courte  if  they  be  prsent, 
and  in  case  of  absence  by  some  deputed  for  that  pur- 
pose. 

5.  It  is  Ordered,  sentenced  and  decreed,  that  to  the 
aforesaid  Courte  of  Election  the  seurall  Townes  shall 
send  their  deputyes,  and  when  the  Elections  are  ended 
they  may  prceed  in  any  publike  searuice  as  at  other 
Courts.    Also  the  other  Generall  Courte  in  September 
shall  be  for  makeing  of  lawes,  and  any  other  publike 
occation,  wch  conserns  the  good  of  the  Comonwelth. 

6.  It  is  Ordered,  sentenced  and  decreed,  that  the 
Gournor  shall,  either  by  himselfe  or  by  the  secretary, 
send  out  sumons  to  the  Constables  of  eur  Towne  for 
the  cauleing  of  these  two  standing  Courts,  on  month 
at  lest  before  their    seurall    tymes:  And    also  if  the 
Gournor  and  the  gretest  prte  of  the  Magestrats  see 
cause  vppon  any  spetiall  occation  to  call  a  generall 
Courte,  they  may  giue  order  to  the  secretary  soe  to  doe 
wthin  fowerteene  dayes  warneing;  and  if  vrgent  neces- 
sity so  require,  vppon  a  shorter  notice,  giueing  suffi- 
cient grownds  for  yt  to  the  deputyes  when  they  meete, 
or  els  be  questioned  for  the  same;  And  if  the  Gournor 
and  Mayor  prte  of  Magestrats  shall  ether  neglect  or 
refuse  to  call  the  two  Generall  standing  Courts  or 


SOME   IMPORTANT    INSPIRATIONS  257 

ether  of  the,  as  also  at  other  tymes  when  the  occations 
of  the  Comonwelth  require,  the  Freemen  thereof,  or 
the  Mayor  prte  of  them,  shall  petition  to  them  soe  to 
doe:  if  then  yt  be  ether  denyed  or  neglected  the  said 
Freemen  or  the  Mayor  prte  of  them  shall  haue  power 
to  giue  order  to  the  Constables  of  the  seuerall  Townes 
to  doe  the  same,  and  so  may  meete  togather,  and  chuse 
to  themselues  a  Moderator,  and  may  prceed  to  do 
any  Acte  of  power,  wch  any  other  Generall  Courte  may. 

7.  It  is  Ordered,  sentenced  and  decreed  that  after 
there  are  warrants  giuen  out  for  any  of  the  said  Gen- 
erall Courts,  the  Constable  or  Constables  of  ech  Townc 
shall  forthwth  give  notice  distinctly  to  the  inhabitants 
of  the  same,  in  some  Publike  Assembly  or  by  goeing 
or  sending  fro  howse  to  howse,  that  at  a  place  and 
tyme  by  him  or  them  lymited  and  sett,  they  meet  and 
assemble  the  selues  togather  to  elect  and  chuse  certen 
deputyes  to  be  att  the  Generall  Courte  then  following 
to  agitate  the  afayres  of  the  comonwelth;  wch  said 
Deputyes  shall  be  chosen    by  all  that    are  admitted 
Inhabitants  in  the  seurall  Townes  and  haue  taken  the 
oath  of  fidellity;  pruided  that  non  be  chosen  a  Deputy 
for  any  Generall  Courte  wch  is  not  a  Freeman  of  this 
Comonwelth. 

The  aforesaid  deputyes  shall  be  chosen  in  manner 
following:  euery  prson  that  is  prsent  and  quallified  as 
before  exprssed,  shall  bring  the  names  of  such,  written 
in  seuTrall  papers,  as  they  desire  to  haue  chosen  for 
that  Imployment,  and  these  3  or  4,  more  or  lesse,  being 
the  nuber  agreed  on  to  be  chosen  for  that  tyme,  that 
haue  greatest  nuber  of  papers  written  for  the  shall 
be  deputyes  for  that  Courte;  whose  names  shall  be 
endorsed  on  the  backe  side  of  the  warrant  and  returned 
into  the  Courte,  wth  the  Constable  or  Constables  hand 
vnto  the  same. 

8.  It  is  Ordered,  sentenced  and  decreed,  that  Wynd- 
sor,  Hartford  and  Wethersfield  shall  haue  power,  ech 
Towne,  to  send  fower  of  their  freemen  as  deputyes  to 
euery  Generall  Courte;  and  whatsoeuer  other  Townes 
shall  be  hereafter  added  to  this  Jurisdiction,  they  shall 
send  so  many  deputyes  as   the    Courte    shall    judge 


258  OUR    CONSTITUTION 

meete,  a  reasonable  prportion  to  the  nuber  of  Freemen 
that  are  in  the  said  Townes  being  to  be  attended 
therein;  wch  deputyes  shall  have  the  power  of  the 
whole  Towne  to  giue  their  voats  and  alowance  to  all 
such  lawes  and  orders  as  may  be  for  the  publike  good, 
and  unto  wch  the  said  Townes  are  to  be  bownd. 

9.  It  is  ordered  and  decreed,  that  the  deputyes  thus 
chosen  shall  haue  power  and  liberty  to  appoynt  a  tyme 
and  a  place  of  meeting  togather  before  any  Generall 
Courte  to  aduise  and  consult  of  all  such  things  as  may 
concerne  the  good  of  the  publike,  as  also  to  examine 
their  owne  Elections,  whether  according  to  the  order, 
and  if  they  or  the  gretest  prte  of  them  find  any  election 
to  be  illegall  they  may  seclud  such  for  prsent  fro  their 
meeting,  and  returne  the  same  and  their  resons  to  the 
Courte;  and  if  yt  proue  true,  the  Courte  may  fyne  the 
prty  or  ptyes  so  intruding  and  the  Towne,  if  they  see 
cause,  and  giue  out  a  warrant  to  goe  to  a  newe  elec- 
tion in  a  legall  way,  either  in  prte  or  in  whole.    Also 
the  said  deputyes  shall  haue  power  to  fyne  any  that 
shall  be  disorderly  at  their  meetings,  or  for  not  coming 
in  due  tyme  or  place  according  to  appoyntment;  and 
they  may  returne  the  said  fynes  into  the  Courte  if  yt 
be  refused  to  be  paid,  and  the  tresurer  to  take  notice 
of  yt,  and  to  estreete  or  levy  the  same  as  he  doth  other 
fynes. 

10.  It  is  Ordered,  sentenced  and  decreed,  that  euery 
Generall  Courte,  except  such  as  through  neglecte  of 
the  Gournor  and  the  greatest  prte  of  Magestrats  the 
Freemen  themselves  doe  call,  shall  consist  of  the  Gou- 
ernor,  or  some  one  chosen  to  moderate  the*  Court,  and 
4  other  Magestrats  at  lest,  wth  the  mayor  prte  of  the 
deputyes  of  the  seuerall  Townes  legally  chosen;  and  in 
case  the  Freemen  or  mayor  prte  of  the,  through  neglect 
or  refusall  of  the  Gouernor  and  mayor  prte  of  the  mag- 
estrats,  shall  call  a    Courte,  yl  shall    consist    of  the 
mayor  prte  of  Freemen  that  are  prsent  or  their  depu- 
tyes, wth  a  Moderator  chosen  by  the:  In  wch  said  Gen- 
erall Courts  shall  consist  the  supreme  power  of  the 
Comonwelth,  and  they  only  shall  haue  power  to  make 
laws  or  repeale  the,  to  graunt  leuyes,  to  admit  of  Free- 


SOME   IMPORTANT   INSPIRATIONS  259 

men,  dispose  of  lands  vndisposed  of,  to  seuerall 
Townes  or  prsons,  and  also  shall  haue  power  to  call 
ether  Courte  or  Magestrate  or  any  other  prson  what- 
soeuer  into  question  for  any  misdemeanour,  and  may 
for  just  causes  displace  or  deale  otherwise  according 
to  the  nature  of  the  offence;  and  also  may  deale  in 
any  other  matter  that  concerns  the  good  of  this  comon 
welth,  excepte  election  of  Magestrats,  wch  shall  be  done 
by  the  whole  boddy  of  Freemen. 

In  wch  Courte  theGouernour  or  Moderator  shall  haue 
power  to  order  the  Courte  to  giue  liberty  of  spech, 
and  silence  vnceasonable  and  disorderly  speakeings,  to 
put  all  things  to  voate,  and  in  case  the  vote  shall  be 
equall  to  haue  the  casting  voice.  But  non  of  these 
Courts  shall  be  adiorned  or  dissolued  wthout  the  con- 
sent of  the  maior  prte  of  the  Court. 

11.  It  is  ordered,  sentenced  and  decreed,  that  when 
any  Generall  Courte  vppon  the  occations  of  the  Comon- 
welth  haue  agreed  vppon  any  sume  or  somes  of  mony 
to  be  leuyed  vppon  the  seuerall  Townes  wthin  this 
Jurisdiction,  that  a  Comittee  be  chosen  to  sett  out 
and  appoynt  w*  shall  be  the  prportion  of  euery  Towne 
to  pay  of  the  said  leuy,  prvided  the  Comittees  be  made 
vp  of  an  equall  nuber  out  of  each  Towne. 

14th  January,  1638,  the  11  Orders  abouesaid  are 
voted. 

(Until  1752  the  legal  year  in  England  began  March 
25  (Lady  Day),  and  the  days  between  January  1,  1639, 
as  we  write  now,  and  Lady  Day  of  that  year,  would 
then  be  written  as  of  1638.) 


THE  NEW  ENGLAND  CONFEDERATION,  1643 

A  suggestion  that  the  New  England  Colonies  and 
towns  should  form  a  league  which  would  afford  means 
for  better  protection,  by  concert  of  action,  against  the 
Indians,  was  made  by  the  Connecticut  River  towns 


260  OUR   CONSTITUTION 

as  early  as  1637,  before  they,,  themselves,  confederated. 
But  concert  of  action  between  bodies  of  people  so  far 
separated  as  were  New  Haven  and  Boston,  with  not 
so  much  as  the  beginning  of  a  coach  road  or  coach 
service  to  aid  intercourse,  was  a  slow  and  difficult 
matter,  and  it  was  not  until  May,  1643,  that  such  a 
league  was  formed.  It  included  Massachusetts,  Con- 
necticut, New  Haven  and  Plymouth.  Khode  Island 
was  not  asked  to  join  because  she  was  thought  to  be 
too  liberal  in  her  views  on  religious  matters  to  deserve 
aid  in  fighting  the  Indians.  A  diligent  study  of  the 
two  thousand  five  hundred  words  employed  in  ex- 
pressing the  purpose  and  powers  of  the  Confederation 
fails  to  disclose  anything  which  justifies  much  of  the 
language  which  has  been  employed  in  its  praise.  It 
was  a  very  limited,  close-corporation  sort  of  associa- 
tion; it  expressly  provided  that  it  would  never  admit 
any  "Plantation"  other  than  such  as  might  be  erected 
within  the  jurisdiction  of  the  original  four.  "Nor 
shall  any  other  plantation  or  jurisdiction,  in  present 
being,  and  not  already  in  combination  or  under  the 
jurisdiction  of  any  of  these  Confederates  be  received 
by  any  of  them."  An  illiberal  provision,  surely,  for 
as  it  read,  poor,  struggling,  little  Rhode  Island  was 
not  only  barred  from  the  league,  but  kept  from  com- 
bining with  New  Haven  if  its  weakness  should  ever 
have  suggested  that  course. 

The  purpose  of  the  league  is  thus  expressed:  "The 
said  United  Colonies  *  *  *  hereby  enter  into  a 
firm  and  perpetual  league  of  friendship  and  amity, 
for  offence  and  defence,  mutual  advice  and  succor," 
for  "propagating  *  *  *  the  Gospel,  and  for  their 
own  mutual  safety  and  welfare."  Elaborate  provi- 
sions are  made  for  apportioning  men  and  supplies 


SOME   IMPORTANT   INSPIRATIONS  261 

needed  for  war,  and  for  "division  of  spoils  and  what- 
soever is  got  by  conquest."  Two  commissioners  from 
each  Confederate  were  to  be  appointed  to  attend  to 
the  division  of  spoils  and  propagation  of  the  Gospel, 
but  "not  intermeddling  with  the  government  of  any 
of  the  jurisdictions." 

No  political  body  was  formed,  no  worthy  principle 
of  government  proclaimed,  no  liberties  extended,  by 
the  league,  which  ceased  to  exist  for  lack  of  purpose 
to  live,  in  1684.  Lest  the  writer  be  suspected  of  un- 
fairness toward  the  "instrument  of  government"  of 
the  New  England  Confederation,  in  seeming  to  deny 
that  it  was  formed  for  any  other  purpose  than  war 
and  division  of  spoils,  he  hastens  to  quote  a  passage 
from  its  Article  VIII,  which  easily  proves  that  other 
purposes  were  in  view:  "It  is  also  agreed  that  if  any 
servant  run  away  from  his  master  into  any  other  of 
these  confederated  jurisdictions,  that  in  such  case, 
upon  the  certificate  of  one  magistrate  in  the  jurisdic- 
tion out  of  which  the  said  servant  fled,  or  upon  other 
due  proof,  the  said  servant  shall  be  delivered  either  to 
his  master  or  any  other  that  pursues  and  brings  such 
certificate  of  proof."  The  full  text  of  the  Articles  is 
not  given,  as  it  is  not  worthy  of  a  place  in  a  collection 
which  seeks  to  include  only  those  which  were  legacies 
of  helpful  inspiration  to  the  framers  of  our  Constitu- 
tion. The  statesmen  of  1787  were  not  inspired  by  a 
document  which  proclaimed  that  those  who  preached 
the  Gospel  according  to  the  views  of  John  Winthrop 
deserved  to  be  protected  from  the  scalping-knife ;  those 
who  preached  according  to  Roger  Williams  were  not 
so  deserving. 


262  OUR   CONSTITUTION 

THE  BILL  OF  RIGHTS,   1689 

The  Revolution  of  1688,  which  ended  the  reign  of 
James  II  and  brought  William  and  Mary  to  the  Eng- 
lish  throne,  secured  constitutional  government  to  the 
country  and  practically  made  it  a  republic.  Says  Sam- 
uel Gardiner,  an  English  historian :  "After  the  Revo- 
lution, England  became  practically  a  republic,  in 
which  the  crown  possessed  various  constitutional  pow- 
ers." Says  Green,  in  his  History  of  the  English  People: 
"The  revels  of  Whitehall,  the  scepticism  and  debauch- 
ery of  courtiers,  the  corruption  of  statesmen,  left  the 
mass  of  Englishmen  what  Puritanism  had  made  them 
— serious,  earnest,  sober  in  life  and  conduct.  In  the 
Revolution  of  1688,  Puritanism  did  the  work  of  civil 
liberty  which  it  had  failed  to  do  in  that  of  1642.  *  *  * 
The  Bill  of  Rights  restored  to  the  monarchy  the  char- 
acter which  it  had  lost  under  the  Tudors  and  the 
Stuarts.  William,  Mary  and  Anne  were  sovereigns 
simply  by  virtue  of  the  Bill  of  Rights.  An  English 
monarch  is  now  as  much  the  creature  of  an  Act  of 
Parliament  as  the  pettiest  tax-gatherer  in  his  realm.'' 

As  has  previously  been  explained,  William  and 
Mary  "did  accept  the  crown  and  royal  dignity"  after 
subscribing  to  the  Bill  of  Rights  and  the  order  of  suc- 
cession accompanying  it,  and  provided  by  Parliament. 

The  text  of  so  much  of  the  Bill  of  Rights  as  relates 
to  our  subject  follows: 

"Whereas  the  Lords  Spiritual  and  Temporal,  and 
Commons,  assembled  at  Westminster,  lawfully,  fully, 
and  freely  representing  all  the  estates  of  the  people 
of  this  realm,  did  upon  the  Thirteenth  day  of  Febru- 
ary, in  the  year  of  our  Lord  One  Thousand  Six  Hun- 
dred Eighty-eight  (New  Style,  1689)  present  unto  their 


SOME   IMPORTANT   INSPIRATIONS  263 

Majesties,  then  called  and  known  by  the  names  and 
style  of  William  and  Mary,  Prince  and  Princess  of 
Orange,  being  present  in  their  proper  persons,  a  cer- 
tain Declaration  in  writing,  made  by  the  said  Lords 
and  Commons,  in  the  words  following,  viz. : 

Whereas  the  late  King  James  II.,  by  the  assist- 
ance of  divers  evil  counsellors,  judges,  and  ministers 
employed  by  him,  did  endeavour  to  subvert  and  extir- 
pate the  Protestant  religion,  and  the  laws  and  liberties 
of  this  kingdom : 

1.  By  assuming  and  exercising  a  power  of  dispens- 
ing with  and  suspending  the  laws,  and  the  execution 
of  laws,  without  consent  of  Parliament. 

2.  By  committing  and  prosecuting  divers  worthy 
prelates  for  humbly  petitioning  to  be  excused  from 
concurring  to  the  said  assumed  power. 

3.  By  issuing  and  causing  to  be  executed  a  commis- 
sion under  the  Great  Seal  for  erecting  a  court,  called 
the  Court  of  Commissioners  for  Ecclesiastical  Causes. 

4.  By  levying  money  for   and   to   the   use   of  the 
Crown  by  pretence  of  prerogative,  for  other  time  and 
in  other  manner  than  the  same  was  granted  by  Parlia- 
ment. 

5.  By  raising  and  keeping  a  standing  army  within 
this  kingdom  in  time  of  peace,  without  consent  of 
Parliament,  and  quartering  soldiers  contrary  to  law. 

6.  By  causing  several  good  subjects,  being  Protest- 
ants, to  be  disarmed,  at  the  same  time  when  Papists 
were  both  armed  and  employed  contrary  to  law. 

7.  By  violating  the  freedom  of  election  of  members 
to  serve  in  Parliament. 

8.  By  prosecutions  in  the  Court  of  King's  Bench 
for  matters  and  causes  cognisable  only  in  Parliament, 
and  by  divers  other  arbitrary  and  illegal  causes. 

9.  And  whereas  of  late  years,  partial,  corrupt,  and 
unqualified  persons  have  been  returned,  and  served 
on  juries  in  trials,  and  particularly  divers  jurors  in 
trials  for  high  treason,  which  were  not  freeholders. 

10.  And  excessive  bail  hath  been  required  of  per- 
sons committed  in  criminal  cases,  to  elude  the  benefit 
of  the  laws  made  for  the  liberty  of  the  subjects. 


264  OUR   CONSTITUTION 

11.  And  excessive  fines   have  been    imposed;  and 
illegal  and  cruel  punishments  inflicted. 

12.  And  several  grants  and  promises  made  of  fines 
and  forfeitures  before  any    conviction    or   judgment 
against  the  persons  upon  whom  the  same  were  to  be 
levied. 

All  which  are  utterly  and  directly  contrary  to  the 
known  laws  and  statutes,  and  freedom  of  this  realm. 

And  whereas  the  said  late  King  James  II.  having 
abdicated  the  government,  and  the  throne  being 
thereby  vacant, ,  his  Highness  the  Prince  of  Orange 
(whom  it  hath  pleased  Almighty  God  to  make  the  glo- 
rious instrument  of  delivering  this  kingdom  from  Pop- 
ery and  arbitrary  power)  did  (by  the  advice  of  the 
Lords  Spiritual  and  Temporal,  and  divers  principal 
persons  of  the  Commons)  cause  letters  to  be  written 
to  the  Lords  Spiritual  and  Temporal,  being  Protes- 
tants, and  other  letters  to  the  several  counties,  cities, 
universities,  boroughs,  and  cinque  ports,  for  the  choos- 
ing of  such  persons  to  represent  them  as  were  of  right 
to  be  sent  to  Parliament,  to  meet  and  sit  at  Westmin- 
ster upon  the  two-and-twentieth  day  of  January,  in 
this  year  One  Thousand  Six  Hundred  Eighty  and 
Eight,  in  order  to  such  an  establishment,  as  that  their 
religion,  laws,  and  liberties  might  not  again  be  in 
danger  of  being  subverted;  upon  which  letters  elec- 
tions have  been  accordingly  made. 

And  thereupon  the  said  Lords  Spiritual  and  Tem- 
poral, and  Commons,  pursuant  to  their  respective 
letters  and  elections,  being  now  assembled  in  a  full 
and  free  representation  of  this  nation,  taking  into  their 
most  serious  consideration  the  best  means  for  attain- 
ing the  ends  aforesaid,  do  in  the  first  plac^e  (as  their 
ancestors  in  like  case  have  usually  done)  for  the  vin- 
dicating and  asserting  their  ancient  rights  and  liber- 
ties, declare: 

1.  That  the  pretended  power  of  suspending  of  laws, 
or  the  execution  of  laws,  by  regal  authority,  without 
consent  of  Parliament,  is  illegal. 

2.  That  the  pretended  power  of  dispensing  with 
laws,  or  the  execution  of  laws  by  regal  authority,  as 
it  hath  been  assumed  and  exercised  of  late,  is  illegal. 


SOME   IMPORTANT   INSPIRATIONS  265 

3.  That  the  commission  for  erecting  the  late  Court 
of  Commissioners  for  Ecclesiastical  Causes,  and  all 
other  commissions  and  courts  of  like  nature,  are  illegal 
and  pernicious. 

4.  That  levying  money  for  or  to  the  use  of  the 
Crown  by  pretence  and  prerogative,  without  grant  of 
Parliament,  for  longer  time  or  in  other  manner  than 
the  same  is  or  shall  be  granted,  is  illegal. 

5.  That  it  is  the  right  of  the  subjects  to  petition 
the  King,  and  all  commitments  and  prosecutions  for 
such  petitioning  are  illegal. 

6.  That  the  raising  or  keeping  a  standing  army 
within  the  kingdom  in  time  of  peace,  unless  it  be  with 
consent  of  Parliament,  is  against  law. 

7.  That  the  subjects  which  are  Protestants  may 
have  arms  for  their  defence  suitable  to  their  condi- 
tions, and  as  allowed  by  law. 

8.  That  election  of  members  of  Parliament  ought 
to  be  free. 

9.  That  the  freedom  of  speech-,  and  debates  or  pro- 
ceedings in  Parliament,  ought  not  to  be  impeached 
or  questioned  in  any  court  or  place  out  of  Parlia- 
ment. 

10.  That  excessive  bail  ought  not  to  be  required, 
nor  excessive  fines  imposed;  nor  cruel  and  unusual 
punishments  inflicted. 

11.  That  jurors  ought  to  be  duly  impanelled  and 
returned,  and  jurors  which  pass  upon  men  in  trials 
for  high  treason  ought  to  be  freeholders. 

12.  That  all  grants  and  promises  of  fines  and  for- 
feitures of  particular  persons  before  conviction  are 
illegal  and  void. 

13.  And  that  for  redress  of  all  grievances,  and  for 
the  amending,  strengthening,  and  preserving  of  the 
laws,  Parliament  ought  to  be  held  frequently. 

And  they  do  claim,  demand,  and  insist  upon  all  and 
singular  the  premises,  as  their  undoubted  rights  and 
liberties;  and  that  no  declarations,  judgments,  doings 
or  proceedings,  to  the  prejudice  of  the  people  in  any 
of  the  said  premises,  ought  in  any  wise  to  be  drawn 
hereafter  into  consequence  or  example." 


266  OUR  CONSTITUTION 


FRANKLIN'S  PLAN  OP  UNION,  1754 

The  Albany  Convention  of  1754  met  at  the  request 
of  the  British  Lords  of  Trade,  a  Committee  of  the 
Privy  Council  having  charge  of  Colonial  affairs.  The 
Convention  was  directed  to  adjust  Indian  affairs,  and 
propose  measures  for  general  defence,  with  regard  to 
the  impending  French  War.  Benjamin  Franklin  was 
one  of  the  delegates  to  the  Convention,  and  shrewdly 
concluded  to  endeavor  to  try  a  federal  government 
scheme,  under  the  authority  of  the  Lords  of  Trade  to 
devise  "general  measures."  The  Convention  adopted 
his  Plan  of  Union,  and  Dr.  Franklin's  own  account 
of  its  subsequent  history  will  best  serve  as  an  intro- 
duction to  its  text: 

"Its  fate  was  singular,"  Franklin  wrote :  "the  assem- 
blies (Colonial)  did  not  adopt  it,  as  they  all  thought 
there  was  too  much  prerogative  in  it,  and  in  England 
it  was  judg'd  to  have  too  much  of  the  democratic.  The 
Board  of  Trade  therefore  did  not  approve  of  it,  nor 
recommend  it  for  the  approbation  of  his  majesty.  The 
different  and  contrary  reasons  of  dislike  to  my  plan 
makes  me  suspect  that  it  was  really  the  true  medium ; 
and  I  am  still  of  opinion  it  would  have  been  happy  for 
both  sides  the  water  if  it  had  been  adopted.  The 
colonies,  so  united,  would  have  been  sufficiently  strong 
to  have  defended  themselves;  there  would  then  have 
been  no  need  of  troops  from  England;  of  course,  the 
subsequent  pretence  for  taxing  America,  and  the 
bloody  contest  it  occasioned,  would  have  been  avoided. 
But  such  mistakes  are  not  new :  history  is  full  of  the 
errors  of  states  and  princes." 

The  text  of  the  Plan  follows : 

"It  is  proposed  that  humble  application  be  made  for 
an  act  of  Parliament  of  Great  Britain,  by  virtue  of 


SOME   IMPORTANT  INSPIRATIONS  267 

which  one  general  government  may  be  formed  in  Amer- 
ica, including  all  the  said  Colonies,  within  and  under 
which  government  each  Colony  may  retain  its  present 
constitution,  except  in  the  particulars  wherein  a 
change  may  be  directed  by  the  said  act,  as  hereafter 
follows. 

That  the  said  general  government  be  administered 
by  a  President-General,  to  be  appointed  and  supported 
by  the  crown;  and  a  Grand  Council,  to  be  chosen  by 
the  representatives  of  the  people  of  the  several  Colo- 
nies met  in  their  respective  assemblies. 

That  within months  after  the  passing  such 

act,  the  House  of  Representatives  that  happen  to  be 
sitting  within  that  time,  or  that  shall  be  especially 
for  that  purpose  convened,  may  and  shall  choose  mem- 
bers for  the  Grand  Council,  in  the  following  propor- 
tion, that  is  to  say :  Massachusetts  Bay  7,  New  Hamp- 
shire 2,  Connecticut  5,  Rhode  Island  2,  New  York  4, 
New  Jersey  3,  Pennsylvania  6,  Maryland  4,  Virginia  7, 
North  Carolina  4,  South  Carolina  4,  total  48;  who  shall 
meet  for  the  first  time  at  the  city  of  Philadelphia  in 
Pennsylvania,  being  called  by  the  President-General 
as  soon  as  conveniently  may  be  after  his  appointment. 

That  there  shall  be  a  new  election  of  the  members 
of  the  Grand  Council  every  three  years;  and,  on  the 
death  or  resignation  of  any  member,  his  place  should 
be  supplied  by  a  new  choice  at  the  next  sitting  of  the 
Assembly  of  the  Colony  he  represented. 

That  after  the  first  three  years,  when  the  propor- 
tion of  money  arising  out  of  each  Colony  to  the  general 
treasury  can  be  known,  the  number  of  members  to  be 
chosen  for  each  Colony  shall,  from  time  to  time,  in 
all  ensuing  elections,  be  regulated  by  that  proportion, 
yet  so  as  that  the  number  to  be  chosen  by  any  one 
Province  be  not  more  than  seven,  nor  less  than  two. 

That  the  Grand  Council  shall  meet  once  in  every 
year,  and  oftener  if  occasion  require,  at  such  time  and 
place  as  they  shall  adjourn  to  at  the  last  preceding 
meeting,  or  as  they  shall  be  called  to  meet  at  by  the 
President-General  on  any  emergency;  he  having  first 
obtained  in  writing  the  consent  of  seven  of  the  mem- 


268  OUR   CONSTITUTION 

bers  to  such  call,  and  sent  due  and  timely  notice  to 
the  whole. 

That  the  Grand  Council  have  power  to  choose  their 
speaker;  and  shall  neither  be  dissolved,  prorogued, 
nor  continued  sitting  longer  than  six  weeks  at  one 
time,  without  their  own  consent  or  the  special  com- 
mand of  the  crown. 

That  the  members  of  the  Grand  Council  shall  be 
allowed  for  their  service  ten  shillings  sterling  per 
diem,  during  their  session  and  journey  to  and  from 
the  place  of  meeting;  twenty  miles  to  be  reckoned  a 
day's  journey. 

That  the  assent  of  the  President-General  be  requisite 
to  all  acts  of  the  Grand  Council,  and  that  it  be  his 
office  and  duty  to  cause  them  to  be  carried  into  execu- 
tion. 

That  the  President-General,  with  the  advice  of  the 
Grand  Council,  hold  or  direct  all  Indian  treaties,  in 
which  the  general  interest  of  the  Colonies  may  be 
concerned;  and  make  peace  or  declare  war  with  Indian 
nations. 

That  they  make  such  laws  as  they  judge  necessary 
for  regulating  all  Indian  trade. 

That  they  make  all  purchases  from  Indians,  for  the 
crown,  of  lands  not  now  within  the  bounds  of  particu- 
lar Colonies,  or  that  shall  not  be  within  their  bounds 
when  some  of  them  are  reduced  to  more  convenient 
dimensions. 

That  they  make  new  settlements  on  such  purchases, 
by  granting  lands  in  the  King's  name,  reserving  a 
quitrent  to  the  crown  for  the  use  of  the  general  treas- 
ury. 

That  they  make  laws  for  regulating  and  governing 
such  new  settlements,  till  the  crown  shall  think  fit 
to  form  them  into  particular  governments. 

That  they  raise  and  pay  soldiers  and  build  forts 
for  the  defence  of  any  of  the  Colonies,  and  equip  ves- 
sels of  force  to  guard  the  coasts  and  protect  the  trade 
on  the  ocean,  lakes,  or  great  rivers;  but  they  shall 
not  impress  men  in  any  Colony,  without  the  consent 
of  the  legislature. 


SOME   IMPORTANT   INSPIRATIONS  269 

That  for  these  purposes  they  have  power  to  make 
laws,  and  lay  and  levy  such  general  duties,  imposts, 
or  taxes,  as  to  them  shall  appear  most  equal  and  just 
(considering  the  ability  and  other  circumstances  of 
the  inhabitants  in  the  several  Colonies),  and  such  as 
may  be  collected  with  the  least  inconvenience  to  the 
people;  rather  discouraging  luxury,  than  loading  in- 
dustry with  unnecessary  burdens. 

That  they  may  appoint  a  General  Treasurer  and 
Particular  Treasurer  in  each  government  when  neces- 
sary; and,  from  time  to  time,  may  order  the  sums  in 
the  treasuries  of  each  government  into  the  general 
treasury;  or  draw  on  them  for  special  payments,  as 
they  find  most  convenient. 

Yet  no  money  to  issue  but  by  joint  orders  of  the 
President-General  and  Grand  Council;  except  where 
sums  have  been  appropriated  to  particular  purposes, 
and  the  President-General  is  previously  empowered  by 
an  act  to  draw  such  sums. 

That  the  general  accounts  shall  be  yearly  settled 
and  reported  to  the  several  Assemblies. 

That  a  quorum  of  the  Grand  Council,  empowered  to 
act  with  the  President-General,  do  consist  of  twenty- 
five  members;  among  whom  there  shall  be  one  or  more 
from  a  majority  of  the  Colonies. 

That  the  laws  made  by  them  for  the  purposes  afore- 
said shall  not  be  repugnant,  but,  as  near  as  may  be, 
agreeable  to  the  laws  of  England,  and  shall  be  trans- 
mitted to  the  King  in  Council  for  approbation,  as  soon 
as  may  be  after  their  passing;  and  if  not  disapproved 
within  three  years  after  presentation,  to  remain  in 
force. 

That,  in  case  of  the  death  of  the  President-General, 
the  Speaker  of  the  Grand  Council  for  the  time  being 
shall  succeed,  and  be  vested  with  the  same  powers  and 
authorities,  to  continue  till  the  King's  pleasure  be 
known. 

That  all  military  commission  officers,  whether  for 
land  or  sea  service,  to  act  under  this  general  constitu- 
tion, shall  be  nominated  by  the  President-General ;  but 
the  approbation  of  the  Grand  Council  is  to  be  obtained 


270  DUE  CONSTITUTION 

before  they  receive  their  commissions.  And  all  civil 
officers  are  to  be  nominated  by  the  Grand  Council,  and 
to  receive  the  President-General's  approbation  before 
they  officiate. 

But,  in  case  of  vacancy  by  death  or  removal  of  any 
officer,  civil  or  military,  under  this  constitution,  the 
Governor  of  the  Province  in  which  such  vacancy  hap- 
pens may  appoint,  till  the  pleasure  of  the  President- 
General  and  Grand  Council  can  be  known. 

That  the  particular  military  as  well  as  civil  estab- 
lishments in  each  Colony  remain  in  their  present  state, 
the  general  constitution  notwithstanding;  and  that  on 
sudden  emergencies  any  Colony  may  defend  itself,  and 
lay  the  accounts  of  expense  thence  arising  before  the 
President-General  and  General  Council,  who  may  al- 
low and  order  payment  of  the  same,  as  far  as  they 
judge  such  accounts  just  and  reasonable." 

DECLARATION  OF  RIGHTS,   1765 

The  Stamp  Act  Congress,  in  which  sat  28  delegates 
representing  Colonies,  met  in  New  York  from  October 
7  to  25,  1765,  and  gave  long  and  serious  consideration 
to  the  condition  of  affairs  as  affected  by  the  Stamp 
Act.  There  had  been  many  disorderly  protests,  riots, 
in  Boston,  New  York  and  other  cities;  the  Con- 
gress could  early  have  provoked  war.  But  its  utter- 
ances were  calm  and  grave,  touching,  as  we  see  evi- 
dence that  the  men  gathered  there  longed  for  a 
peaceful  continuance  of  their  colonial  relation  to  the 
mother  country.  They  open  and  close  their  address  in 
language  of  honorable  loyalty;  they  infer  that  they 
will  gladly  continue  to  assess  themselves  for  those 
"supplies  to  the  crown,  being  free  gifts  of  the  people." 
But  "it  is  inseparably  essential  to  the  freedom  of  a 
people  *  *  *  that  no  taxes  be  imposed  upon  them 
but  with  their  own  consent." 


SOME    IMPORTANT    INSPIRATIONS  271 

Language  so  calm,  so  measured,  readily  won  the 
praise  of  British  statesmen,  yet  its  full  meaning  they 
could  not  or  would  not  accept.  We  have  seen  that  the 
British  Parliament,  having  considered  the  Declaration 
of  the  Congress,  and  all  the  papers  touching  the  Stamp 
Act  disturbances  in  America,  repealed  the  Act,  but 
passed,  at  the  same  time,  a  Declaratory  Act  affirming 
the  right  of  Parliament  to  tax  the  Colonies — the  pre- 
cise right  against  which  the  Colonies  had  protested! 

Following  is  the  text  of  the  Declaration  of  Rights: 

"The  Congress,  upon  mature  deliberation,  agreed  to 
the  following  declarations  of  the  rights  and  grievances 
of  the  colonists  in  America: 

The  members  of  this  congress,  sincerely  devoted, 
with  the  warmest  sentiments  of  affection  and  duty, 
to  His  Majesty's  person  and  government,  inviolably 
attached  to  the  present  happy  establishment  of  the 
Protestant  succession,  and  with  minds  deeply  im- 
pressed by  a  sense  of  the  present  and  impending  mis- 
fortunes of  the  British  colonies  on  this  continent ;  hav- 
ing considered  as  maturely  as  time  will  permit,  the 
circumstances  of  the  said  colonies,  esteem  it  our  indis- 
pensable duty  to  make  the  following  declarations  of 
our  humble  opinion  respecting  the  most  essential 
rights  and  liberties  of  the  colonies  and  of  the  griev- 
ances under  which  they  labor  by  reason  of  the  several 
late  acts  of  Parliament. 

1.  That  His  Majesty's  subjects  in  these  colonies 
owe  the  same  allegiance  to  the  crown  of  Great  Britain 
that  is  owing  from  his  subjects  born  within  the  realm; 
and  all  due  subordination  to  that  august  body,  the 
Parliament  of  Great  Britain. 

2.  That  His  Majesty's  liege  subjects,  in  these  col- 
onies, are  entitled  to  all   the    inherent    rights  and 
liberties  of  his  natural  born  subjects  within  the  king- 
dom of  Great  Britain. 

3.  That  it  is  inseparably  essential  to  the  freedom 
of  a  people,  and  the  undoubted  right  of  Englishmen, 


212  OUR   CONSTITUTION 

that  no  taxes  be  imposed  on  them  but  with  their 
own  consent,  given  personally,  or  by  their  representa- 
tives. 

4.  That  the  people  of  these  colonies  are  not,  and 
from  their  local  circumstances  cannot  be,  represented 
in  the  House  of  Commons,  in  Great  Britain. 

5.  That  the  only  representatives  of  the  people  of 
these  colonies  are  persons  chosen  therein  by  them- 
selves; and  that  no  taxes  ever  have  been,  or  can  be 
constitutionally  imposed  on  them,  but  by  their  re- 
spective legislatures. 

6.  That  all  supplies  to  the  crown,  being  the  free 
gifts  of  the  people,  it  is  unreasonable  and  inconsistent 
with  the  principles  and  spirit  of  the  British  constitu- 
tion, for  the  people  of  Great  Britain  to  grant  to  His 
Majesty  the  property  of  the  colonists. 

7.  That  trial  by  jury  is  the  inherent  and  invaluable 
right  of  every  British  subject  in  these  colonies. 

8.  That  the  late  act  of  Parliament,  entitled  'An 
act  for  granting  and  applying  certain  stamp  duties, 
and  other  duties  in  the  British  colonies  and  planta- 
tions, in  America,  etc.,'  by  imposing  taxes  on  the  inhab- 
itants of  these  colonies,  and  the  said  act,  and  several 
other  acts,  by  extending  the  jurisdiction  of  the  courts 
of  admiralty  beyond  its  ancient  limits,  have  a  mani 
fest  tendency  to  subvert  the  rights  and  liberties  of 
the  colonists. 

9.  That  the  duties  imposed  by  several  late  acts  of 
Parliament,  from  the  peculiar  circumstances  of  these 
colonies,  will  be  extremely  burthensome  and  grievous, 
and  from  the  scarcity  of  specie,  the  payment  of  them 
absolutely  impracticable. 

10.  That  as  the  profits  of  the  trade  of  these  colonies 
ultimately  center  in   Great  Britain,  to  pay  for  the 
manufactures  which  they  are  obliged  to  take  from 
thence,  they  eventually  contribute  very  largely  to  all 
supplies  granted  there  to  the  crown. 

11.  That  the  restrictions  imposed  by  several  late 
acts  of  Parliament  on  the  trade  of  these  colonies  will 
render  them  unable  to  purchase  the  manufactures  of 
Great  Britain. 


SOME    IMPORTANT    INSPIRATIONS  273 

12.  That  the  increase,  prosperity,  and  happiness  of 
these  colonies  depend  on  the  full  and  free  enjoyments 
of  their  rights  and  liberties,  and  an  intercourse  with 
Great  Britain,  mutually  affectionate  and  advantage- 
ous. 

13.  That  it  is  the  right  of  the  British  subjects  in 
these  colonies  to  petition  the  King,  or  either  house  of 
Parliament. 

Lastly.  That  it  is  the  indispensable  duty  of  these 
colonies,  to  the  best  of  sovereigns,  to  the  mother 
country,  and  to  themselves,  to  endeavour  by  a  loyal 
and  dutiful  address  to  His  Majesty,  and  humble  appli- 
cations to  both  houses  of  Parliament,  to  procure  the 
repeal  of  the  act  for  granting  and  applying  certain 
stamp  duties,  of  all  clauses  of  any  other  acts  of  Par- 
liament, whereby  the  jurisdiction  of  the  admiralty  is 
extended,  as  aforesaid,  and  of  the  other  late  acts  for 
the  restriction  of  American  commerce." 

DECLARATION   OF  INDEPENDENCE,    1776 

Eleven  years  passed  after  the  Stamp  Act  Congress 
issued  its  Declaration  of  Rights  and  before  the  Con- 
tinental Congress  issued  its  Declaration  of  Independ- 
ence. Parliament  passed  other  revenue  bills  affecting 
the  Colonies;  Massachusetts  petitioned  against  them; 
Virginia  resolved  to  resist  them;  after  the  "Boston 
massacre"  Parliament  repealed  all  the  revenue  bills 
but  the  one  laying  a  tax  on  tea;  taxed  tea  arrived  and 
was  thrown  over  in  Boston  Bay;  the  port  of  Boston  is 
closed;  the  Continental  Congress  meets  and  again  de- 
clares Colonial  rights;  but  British  troops  arrive,  the 
battles  of  Lexington  and  Concord  are  fought;  Wash- 
ington, at  the  head  of  New  England  troops,  drives  the 
British  out  of  Boston;  and  on  July  4,  Congress 
declares  American  independence  in  these  immortal 
words: 


374  OUR   CONSTITUTION 

THE  DECLARATION  OF  INDEPENDENCE 
IN  CONGRESS  JULY  4,  1776 

The  Unanimous  Declaration  of  the  Thirteen  United  States 
of  America. 

When  in  the  course  of  human  events,  it  becomes 
necessary  for  one  people  to  dissolve  the  political  bands 
which  have  connected  them  with  another,  and  to  as- 
sume among  the  Powers  of  the  earth,  the  separate  and 
equal  station  to  which  the  Laws  of  Nature  and  of 
Nature's  God  entitle  them,  a  decent  respect  to  the 
opinions  of  mankind  requires  that  they  should  declare 
the  causes  which  impel  them  to  the  separation. 

We  hold  these  truths  to  be  self-evident,  that  all  men 
are  created  equal,  that  they  are  endowed  by  their 
Creator  with  certain  unalienable  Rights,  that  among 
these  are  Life,  Liberty  and  the  pursuit  of  Happiness. 
That  to  secure  these  rights,  Governments  are  insti- 
tuted among  Men,  deriving  their  just  powers  from 
the  consent  of  the  governed.  That  whenever  any  Form 
of  Government  becpmes  destructive  of  these  ends,  it 
is  the  Right  of  the  people  to  alter  or  to  abolish  it,  and 
to  institute  new  Government,  laying  its  foundation  on 
such  principles  and  organizing  its  powers  in  such  form, 
as  to  them  shall  seem  most  likely  to  effect  their  Safety 
and  Happiness.  Prudence,  indeed,  will  dictate  that 
Governments  long  established  should  not  be  changed 
for  light  and  transcient  causes;  and  accordingly  all 
experience  hath  shown,  that  mankind  are  more  dis- 
posed to  suffer,  while  evils  are  sufferable,  than  to  right 
themselves  by  abolishing  the  forms  to  which  they  are 
accustomed.  But  when  a  long  train  of  abuses  and 
usurpations,  pursuing  invariably  the  same  Object, 
evinces  a  design  to  reduce  them  under  absolute  des- 
potism, it  is  their  right,  it  is  their  duty,  to  throw  off 
such  Government,  and  to  provide  new  Guards  for  their 
future  security. — Such  has  been  the  patient  sufferance 
of  these  Colonies;  and  such  is  now  the  necessity  which 
constrains  them  to  alter  their  former  Systems  of  Gov- 
ernment. The  history  of  the  present  King  of  Great 
Britain  is  a  history  of  repeated  injuries  and  usurpa- 


SOME    IMPORTANT   INSPIRATIONS  275 

tions,  all  having  in  direct  object  the  establishment  of 
an  absolute  Tyranny  over  these  States.  To  prove  this, 
let  Facts  be  submitted  to  a  candid  world. 

He  has  refused  his  Assent  to  Laws,  the  most  whole- 
some and  necessary  for  the  public  good. 

He  has  forbidden  his  Governors  to  pass  Laws  of 
immediate  and  pressing  importance,  unless  suspended 
in  their  operation  till  his  Assent  should  be  obtained; 
and  when  so  suspended,  he  has  utterly  neglected  to 
attend  to  them. 

He  has  refused  to  pass  other  laws  for  the  accommo- 
dation of  large  districts  of  people,  unless  those  people 
would  relinquish  the  right  of  Representation  in  the 
Legislature,  a  right  inestimable  to  them  and  formi- 
dable to  tyrants  only. 

He  has  called  together  legislative  bodies  at  places 
unusual,  uncomfortable,  and  distant  from  the  depos- 
itory of  their  Public  Records,  for  the  sole  purpose  of 
fatiguing  them  into  compliance  with  his  measures. 

He  has  dissolved  Representative  Houses  repeatedly, 
for  opposing  with  manly  firmness  his  invasions  on  the 
rights  of  the  people. 

He  has  refused  for  a  long  time,  after  such  dissolu- 
tions, to  cause  others  to  be  elected ;  whereby  the  Legis- 
lative Powers,  incapable  of  Annihilation,  have  re- 
turned to  the  People  at  large  for  their  exercise;  the 
State  remaining  in  the  meantime  exposed  to  all  the 
dangers  of  invasion  from  without,  and  convulsions 
within. 

He  has  endeavored  to  prevent  the  population  of 
these  States;  for  that  purpose  obstructing  the  Laws 
for  Naturalization  of  Foreigners :  refusing  to  pass  oth- 
ers to  encourage  their  migration  hither,  and  raising 
the  conditions  of  new  Appropriations  of  Lands. 

He  has  obstructed  the  Administration  of  Justice, 
by  refusing  his  Assent  to  Laws  for  establishing  Judi- 
ciary Powers. 

He  has  made  Judges  dependent  on  his  Will  alone 
for  the  tenure  of  their  offices,  and  the  amount  and  pay- 
ment of  their  salaries. 

•He  has  erected  a  multitude  of  New  Offices,  and  sent 


276  OUR   CONSTITUTION 

hither  swarms  of  Officers  to  harrass  our  People,  and 
eat  out  their  substance. 

He  has  kept  among  us,  in  times  of  peace,  Standing 
Armies  without  the  Consent  of  our  legislature. 

He  has  affected  to  render  the  Military  independent 
of  and  superior  to  the  Civil  Power. 

He  has  combined  with  others  to  subject  us  to  a 
jurisdiction  foreign  to  our  constitution,  and  unac- 
knowledged by  our  laws;  giving  his  assent  to  their 
Acts  of  pretended  Legislation: 

For  quartering  large  bodies  of  armed  troops  among 
us: 

For  Protecting  them,  by  a  mock  Trial,  from  Punish- 
ment for  any  murders  which  they  should  commit  on 
the  inhabitants  of  these  States : 

For  cutting  off  our  Trade  with  all  parts  of  the  world: 

For  imposing  taxes  on  us  without  our  consent: 

For  depriving  us  in  many  cases,  of  the  benefits  of 
Trial  by  Jury: 

For  transporting  us  beyond  Seas  to  be  tried  for 
pretended  offenses: 

For  abolishing  the  free  System  of  English  Laws  in 
a  neighboring  province,  establishing  therein  an  Arbi- 
trary government,  and  enlarging  its  Boundaries  so  as 
to  render  it  at  once  an  example  and  fit  instrument  for 
introducing  the  same  absolute  rule  into  these  Colo- 
nies: 

For  taking  away  our  Charters,  abolishing  our  most 
valuable  Laws,  and  altering  fundamentally  the  Forms 
of  our  Governments: 

For  suspending  our  own  Legislatures,  and  declaring 
themselves  invested  with  power  to  legislate  for  us  in 
all  cases  whatsoever. 

He  has  abdicated  Government  here,  by  declaring  us 
out  of  his  Protection  and  waging  War  against  us. 

He  has  plundered  our  Seas,  ravaged  our  Coasts, 
burnt  our  towns  and  destroyed  the  lives  of  our  people. 

He  is  at  this  time  transporting  large  armies  of  for- 
eign mercenaries  to  complete  the  works  of  death,  deso- 
lation, and  tyranny,  already  begun  with  circumstances 
of  Cruelty,  and  perfidy  scarcely  paralleled  in  the  most 


SOME   IMPORTANT   INSPIRATIONS  277 

barbarous  ages,  and  totally  unworthy  the  Head  of  a 
civilized  nation. 

He  has  constrained  our  fellow  Citizens  taken  Cap- 
tive on  the  high  Seas  to  bear  Arms  against  their  Coun- 
try, to  become  the  executioners  of  their  friends  and 
Brethren,  or  to  fall  themselves  by  their  Hands. 

He  has  excited  domestic  insurrections  amongst  us, 
and  has  endeavored  to  bring  on  the  inhabitants  of 
our  frontiers  the  merciless  Indian  Savages,  whose 
known  rule  of  warfare  is  an  undistinguished  destruc- 
tion of  all  ages,  sexes  and  conditions. 

In  every  stage  of  these  Oppressions  We  have  Peti- 
tioned for  Redress  in  the  most  humble  terms:  Our 
repeated  Petitions  have  been  answered  only  by  re- 
peated injury.  A  Prince,  whose  character  is  thus 
marked  by  every  act  which  may  define  a  tyrant,  is 
unfit  to  be  the  ruler  of  a  free  People. 

Nor  have  We  been  wanting  in  attention  to  our  Brit- 
ish brethren.  We  have  warned  them  from  time  to  time 
of  attempts  by  their  legislature  to  extend  an  unwar- 
rantable jurisdiction  over  us.  We  have  reminded  them 
of  the  circumstances  of  our  emigration  and  settlement 
here.  We  have  appealed  to  their  native  justice  and 
magnanimity,  and  we  have  conjured  them  by  the  ties 
of  our  common  kindred  to  disavow  these  usurpations, 
which  would  inevitably  interrupt  our  connections  and 
correspondence.  They  too  have  been  deaf  to  the  voice 
of  justice  and  of  consanguinity.  We  must,  therefore,  ac- 
quiesce in  the  necessity  which  denounces  our  Separa- 
tion, and  hold  them,  as  we  hold  the  rest  of  mankind, 
Enemies  in  War,  in  Peace  Friends. 

We,  therefore,  the  representatives  of  the  United 
States  of  America,  in  General  Congress,  Assembled, 
appealing  to  the  Supreme  Judge  of  the  world  for  the 
rectitude  of  our  intentions,  do,  in  the  Name,  and  by 
Authority  of  the  good  People  of  these  Colonies,  sol- 
emnly publish  and  declare,  That  these  United  Colonies 
are,  and  of  Right  ought  to  be  Free  and  Independent 
States;  that  they  are  Absolved  from  all  Allegiance  to 
the  British  Crown,  and  that  all  political  connection 
between  them  and  the  State  of  Great  Britain  is  and 


278  OUR   CONSTITUTION 

ought  to  be  totally  dissolved;  and  that  as  Free  and 
Independent  States,  they  have  full  power  to  levy  War, 
conclude  Peace,  contract  Alliances,  establish  Com- 
merce, and  to  do  all  other  Acts  and  Things  which 
Independent  States  may  of  right  do.  And  for  the  sup- 
port of  this  Declaration,  with  a  firm  reliance  on  the 
Protection  of  Divine  Providence,  we  mutually  pledge 
to  each  other  our  Lives,  our  Fortunes  and  our  sacred 
Honor." 

ORDINANCE  FOR  THE  GOVERNMENT  OF  THE  NORTHWEST, 

1787 

In  1784  Virginia  delivered  to  Congress  a  deed  by 
which  she  ceded  to  the  United  States  all  her  territory 
northwest  of  the  Ohio  River.  From  that  territory  has 
been  erected  the  five  great  States  of  Ohio,  Indiana, 
Illinois,  Michigan  and  Wisconsin.  In  1787  Congress 
passed  an  Act  for  the  government  of  that  territory, 
an  Act  which  usually  is  referred  to  as  "The  Ordinance 
of  1787,"  and  which  has  been  praised  by  statesmen  in 
almost  unmeasured  terms.  Said  Webster:  "I  doubt 
whether  one  single  law  of  any  law-giver,  ancient  or 
modern,  has  produced  effects  of  more  distinct,  marked 
and  lasting  character."  Said  Senator  Hoar:  "As  the 
American  youth  for  uncounted  centuries  shall  visit 
the  capital  of  his  country  and  look  upon  the  records 
of  great  wars  and  the  statues  of  great  commanders, 
there  is  nothing  in  all  these  which  will  so  stir  his  heart 
as  two  faded  and  time-soiled  papers,  the  original  rec- 
ords of  the  acts  which  devoted  this  nation  forever 
to  equality,  to  education,  to  religion  and  to  liberty. 
One  is  the  Declaration  of  Independence,  the  other  the 
Ordinance  of  1787."  Washington  was  deeply  inter- 
ested in  the  settlement  and  development  of  the  North- 
west, which  was  made  possible  by  and  quickly  fol- 


SOME   IMPORTANT   INSPIRATIONS  279 

lowed  the  enactment  of  the  Ordinance,  and,  speaking 
of  the  first  settlement  in  the  territory,  he  said:  "No 
Colony  in  America  was  ever  settled  under  such  favor- 
able auspices.  Information,  property,  strength,  will 
be  its  character.  I  know  many  of  the  settlers  person- 
ally, and  there  never  were  men  better  calculated  to 
promote  the  welfare  of  such  a  community." 

The  men  Washington  spoke  of  were  the  first  settlers 
under  the  charter  of  the  Ohio  Company,  who,  led  by 
General  Kufus  Putnam,  founded  Marietta  on  the  banks 
of  the  Ohio,  April  7,  1788.  Within  a  year  after  the 
organization  of  the  Territory  20,000  settlers,  mostly 
from  the  New  England  States,  had  settled  there,  and 
its  growth  was  rapid,  substantial  and  prosperous.  The 
Ordinance  forever  prohibited  slavery  in  the  Territory, 
and  thereby,  said  Webster,  "fixed  forever  the  charac- 
ter of  the  population  in  the  vast  region  northwest  of 
the  Ohio.  It  impressed  on  the  soil  itself,  while  it  was 
yet  a  wilderness,  an  incapacity  to  sustain  any  other 
than  freemen." 

AN  ORDINANCE  FOR  THE  GOVERNMENT  OF  THE  TERRI- 
TORY OF  THE  UNITED  STATES  NORTHWEST  OF  THE 
RIVER  OHIO. 

Be  it  ordained  by  the  United  States  in  Congress  assem- 
bled, That  the  said  territory,  for  the  purposes  of 
temporary  government,  be  one  district,  subject, 
however,  to  be  divided  into  two  districts,  as  future 
circumstances  may,  in  the  opinion  of  Congress,  make 
it  expedient. 

Be  it  ordained  by  the  authority  aforesaid,  That  the 
estates,  both  of  resident  and  non-resident  proprietors 
in  the  said  territory,  dying  intestate,  shall  descend  to, 
and  be  distributed  among,  their  children,  and  the  de- 
scendants of  a  deceased  child,  in  equal  parts;  the 
descendants  of  a  deceased  child  or  grandchild  to  take 


280  OUR   CONSTITUTION 

the  share  of  their  deceased  parent  in  equal  parts 
among  them:  And  where  there  shall  be  no  children  or 
descendants,  then  in  equal  parts  to  the  next  of  kin  in 
equal  degree;  and,  among  collaterals,  the  children  of 
a  deceased  brother  or  sister  of  the  intestate  shall  have, 
in  equal  parts  among  them,  their  deceased  parents' 
share;  and  there  shall,  in  no  case,  be  a  distinction 
between  kindred  of  the  whole  and  half-blood;  saving, 
in  all  cases,  to  the  widow  of  the  intestate  her  third 
part  of  the  real  estate  for  life,  and  one-third  part  of 
the  personal  estate;  and  this  law,  relative  to  descents 
and  dower,  shall  remain  in  full  force  until  altered  by 
the  legislature  of  the  district.  And,  until  the  governor 
and  judges  shall  adopt  laws  as  hereinafter  mentioned, 
estates  in  the  said  territory  may  be  devised  or  be- 
queathed by  wills  in  writing,  signed  and  sealed  by 
him  or  her,  in  whom  the  estate  may  be  (being  of  full 
age,)  and  attested  by  three  witnesses;  and  real  estates 
may  be  conveyed  by  lease  and  release,  or  bargain  and 
sale,  signed,  sealed,  and  delivered  by  the  person,  being 
of  full  age,  in  whom  the  estate  may  be,  and  attested 
by  two  witnesses,  provided  such  wills  be  duly  proved, 
and  such  conveyances  be  acknowledged,  or  the  execu- 
tion thereof  duly  proved,  and  be  recorded  within  one 
year  after  proper  magistrates,  courts,  and  registers 
shall  be  appointed  for  that  purpose;  and  personal  prop- 
erty may  be  transferred  by  delivery;  saving,  however, 
to  the  French  and  Canadian  inhabitants,  and  other 
settlers  of  the  Kaskaskias,  St.  Vincents,  and  the  neigh- 
boring villages  who  have  heretofore  professed  them- 
selves citizens  of  Virginia,  their  laws  and  customs  now 
in  force  among  them,  relative  to  the  descent  and  con- 
veyance of  property. 

Be  it  ordained  by  the  authority  aforesaid,  That  there 
shall  be  appointed,  from  time  to  time,  by  Congress,  a 
governor,  whose  commission  shall  continue  in  force  for 
the  term  of  three  years,  unless  sooner  revoked  by 
Congress;  Le  shall  reside  in  the  district,  and  have  a 
freehold  estate  therein  in  1,000  acres  of  land,  while  in 
the  exercise  of  his  office. 

There  shall  be  appointed,  from  time  to  time,  by 


SOME   IMPORTANT   INSPIRATIONS  281 

Congress,  a  secretary,  whose  commission  shall  con- 
tinue in  force  for  four  years  unless  sooner  revoked; 
he  shall  reside  in  the  district,  and  have  a  freehold 
estate  therein  in  500  acres  of  land,  while  in  the  exer- 
cise of  his  office;  it  shall  be  his  duty  to  keep  and  pre- 
serve the  acts  and  laws  passed  by  the  legislature,  and 
1he  public  records  of  the  district,  and  the  proceedings 
of  the  governor  in  his  Executive  department;  and 
transmit  authentic  copies  of  such  acts  and  proceedings, 
every  six  months,  to  the  Secretary  of  Congress:  There 
shall  also  be  appointed  a  court  to  consist  of  three 
judges,  any  two  of  whom  to  form  a  court,  who  shall 
have  a  common  law  jurisdiction,  and  reside  in  the  dis- 
trict, and  have  each  therein  a  freehold  estate  in  500 
acres  of  land  while  in  the  exercise  of  their  offices;  and 
their  commissions  shall  continue  in  force  during  good 
behavior. 

The  governor  and  judges,  or  a  majority  of  them, 
shall  adopt  and  publish  in  the  district  such  laws  of 
the  original  States,  criminal  and  civil,  as  may  be  neces- 
sary and  best  suited  to  the  circumstances  of  the  dis- 
trict, and  report  them  to  Congress  from  time  to  time: 
which  laws  shall  be  in  force  in  the  district  until  the 
organization  of  the  General  Assembly  therein,  unless 
disapproved  of  by  Congress ;  but,  afterwards,  the  legis- 
lature shall  have  authority  to  alter  them  as  they  shall 
think  fit. 

The  governor,  for  the  time  being,  shall  be  comman- 
der-in-chief  of  the  militia,  appoint  and  commission  all 
officers  in  the  same  below  the  rank  of  general  officers; 
all  general  officers  shall  be  appointed  and  commis- 
sioned by  Congress. 

Previous  to  the  organization  of  the  General  Assem- 
bly, the  governor  shall  appoint  such  magistrates  and 
other  civil  officers,  in  each  county  or  township,  as  he 
shall  find  necessary  for  the  preservation  of  the  peace 
and  good  order  in  the  same :  After  the  General  Assem- 
bly shall  be  organized,  the  powers  and  duties  of  the 
magistrates  and  other  civil  officers,  shall  be  reg- 
ulated and  defined  by  the  said  assembly;  but  all 
magistrates  and  other  civil  officers,  not  herein  oth- 


282  OUR   CONSTITUTION 

erwise  directed,  shall,  during  the  continuance  of 
this  temporary  government,  be  appointed  by  the  gov- 
ernor. 

For  the  prevention  of  crimes  and  injuries,  the  laws 
to  be  adopted  or  made  shall  have  force  in  all  parts 
of  the  district,  and  for  the  execution  of  process,  crim- 
inal and  civil,  the  governor  shall  make  proper  divisions 
thereof;  and  he  shall  proceed,  from  time  to  time,  as 
circumstances  may  require,  to  lay  out  the  parts  of  the 
district  in  which  the  Indian  titles  shall  have  been 
extinguished,  into  counties  and  townships,  subject, 
however,  to  such  alteration  as  may  thereafter  be  made 
by  the  legislature. 

So  soon  as  there  shall  be  5,000  free  male  inhabitants 
of  full  age  in  the  district,  upon  giving  proof  thereof 
to  the  governor,  they  shall  receive  authority,  with  time 
and  place,  to  erect  representatives  from  their  counties 
or  townships  to  represent  them  in  the  General  Assem- 
bly: Provided,  That,  for  every  500  free  male  inhabi- 
tants, there  shall  be  one  representative,  and  so  on 
progressively  with  the  number  of  free  male  inhabi- 
tants, shall  the  right  of  representation  increase,  until 
the  number  of  representatives  shall  amount  to  25; 
after  which,  the  number  and  proportion  of  representa- 
tives shall  be  regulated  by  the  legislature:  Provided, 
That  no  person  be  eligible  or  qualified  to  act  as  a 
representative  unless  he  shall  have  been  a  citizen  of 
one  of  the  United  States  three  years,  and  be  a  resident 
in  the  district,  or  unless  he  shall  have  resided  in  the 
district  three  years;  and,  in  either  case,  shall  likewise 
hold  in  his  own  right,  in  fee  simple,  200  acres  of  land 
within  the  same:  Provided,  also,  That  a  freehold  in  50 
acres  of  land  in  the  district,  having  been  a  citizen  of 
one  of  the  States,  and  being  resident  in  the  district,  or 
the  like  freehold  and  two  years'  residence  in  the  dis- 
trict, shall  be  necessary  to  qualify  a  man  as  an  elector 
of  a  representative. 

The  representatives  thus  elected,  shall  serve  for  the 
term  of  two  years;  and,  in  case  of  the  death  of  a  rep- 
resentative, or  removal  from  office,  the  governor  shall 
issue  a  writ  to  the  county  or  township  for  which  he 


SOME    IMPORTANT   INSPIRATIONS  283 

was  a  member,  to  elect  another  in  his  stead,  to  serve 
for  the  residue  of  the  term. 

The  General  Assembly,  or  Legislature,  shall  consist 
of  the  governor,  legislative  council,  and  a  house  of 
representatives.  The  legislative  council  shall  consist 
of  five  members,  to  continue  in  office  for  five  years, 
unless  sooner  removed  by  Congress;  any  three  of  whom 
to  be  a  quorum:  and  the  members  of  the  council  shall 
be  nominated  and  appointed  in  the  following  manner, 
to  wit:  As  soon  as  representatives  shall  be  elected, 
the  governor  shall  appoint  a  time  and  place  for  them 
to  meet  together;  and,  when  met,  they  shall  nominate 
ten  persons,  residents  in  the  district,  and  each  pos- 
sessed of  a  freehold  in  500  acres  of  land,  and  return 
their  names  to  Congress;  five  of  whom  Congress  shall 
appoint  and  commission  to  serve  as  aforesaid;  and, 
whenever  a  vacancy  shall  happen  in  the  council,  by 
death  or  removal  from  office,  the  house  of  representa- 
tives shall  nominate  two  persons,  qualified  as  afore- 
said, for  each  vacancy,  and  return  their  names  to 
Congress;  one  of  whom  Congress  shall  appoint  and 
commission  for  the  residue  of  the  term.  And  every 
five  years,  four  months  at  least  before  the  expiration 
of  the  time  of  service  of  the  members  of  council,  the 
said  house  shall  nominate  ten  persons,  qualified  as 
aforesaid,  and  return  their  names  to  Congress;  five 
of  whom  Congress  shall  appoint  and  commission  to 
serve  as  members  of  the  council  five  years,  unless 
sooner  removed.  And  the  governor,  legislative  coun- 
cil, and  house  of  representatives,  shall  have  authority 
to  make  laws  in  all  cases,  for  the  good  government  of 
the  district,  not  repugnant  to  the  principles  and  arti- 
cles in  this  ordinance  established  and  declared.  And 
all  bills,  having  passed  by  a  majority  in  the  house,  and 
by  a  majority  in  the  council,  shall  be  referred  to  the 
governor  for  his  assent;  but  no  bill,  or  legislative  act 
whatever,  shall  be  of  any  force  without  his  assent. 
The  governor  shall  have  power  to  convene,  prorogue, 
and  dissolve  the  General  Assembly,  when,  in  his  opin- 
ion, it  shall  be  expedient. 

The  governor,  judges,  legislative  council,  secretary, 


284  OUR   CONSTITUTION 

and  such  other  officers  as  Congress  shall  appoint  in 
the  district,  shall  take  an  oath  or  affirmation  of  fidelity 
and  of  office;  the  governor  before  the  President  of 
Congress,  and  all  other  officers  before  the  governor. 
As  soon  as  a  legislature  shall  be  formed  in  the  district, 
the  council  and  house  assembled  in  one  room,  shall 
have  authority,  by  joint  ballot,  to  elect  a  delegate  to 
Congress,  who  shall  have  a  seat  in  Congress,  with  a 
right  of  debating  but  not  of  voting  during  this  tem- 
porary government. 

And,  for  extending  the  fundamental  principles  of 
civil  and  religious  liberty,  which  form  the  basis 
whereon  these  republics,  their  laws  and  constitutions 
are  erected;  to  fix  and  establish  those  principles  as  the 
basis  of  all  laws,  constitutions,  and  governments, 
which  forever  hereafter  shall  be  formed  in  the  said 
territory:  to  provide  also  for  the  establishment  of 
States,  and  permanent  government  therein,  and  for 
their  admission  to  a  share  in  the  federal  councils  on  an 
equal  footing  with  the  original  States,  at  as  early  peri- 
ods as  may  be  consistent  with  the  general  interest: 

It  is  hereby  ordained  and  declared  by  the  authority 
aforesaid,  That  the  following  articles  shall  be  consid- 
ered as  articles  of  compact  between  the  original  States 
and  the  people  and  States  in  the  said  territory  and 
forever  remain  unalterable,  unless  by  common  consent, 
to  wit: 

ART.  1st.  No  person,  demeaning  himself  in  a  peace- 
able and  orderly  manner,  shall  ever  be  molested  on 
account  of  his  mode  of  worship  or  religious  sentiments, 
in  the  said  territory. 

ART.  2d.  The  inhabitants  of  the  said  territory  shall 
always  be  entitled  to  the  benefits  of  the  writ  of  habeas 
corpus,  and  of  the  trial  by  jury;  of  a  proportionate 
representation  of  the  people  in  the  legislature;  and  of 
judicial  proceedings  according  to  the  course  of  the 
common  law.  All  persons  shall  be  bailable,  unless  for 
capital  offences,  where  the  proof  shall  be  evident  or 
the  presumption  great.  All  fines  shall  be  moderate; 
and  no  cruel  or  unusual  punishments  shall  be  inflicted. 
No  man  shall  be  deprived  of  his  liberty  or  property, 


SOME   IMPORTANT    INSPIRATIONS  285 

but  by  the  judgment  of  his  peers  or  the  law  of  the 
land ;  and,  should  the  public  exigencies  make  it  neces- 
sary, for  the  common  preservation,  to  take  any  per- 
son's property,  or  to  demand  his  particular  services, 
full  compensation  shall  be  made  for  the  same.  And, 
in  the  just  preservation  of  rights  and  property,  it  is 
understood  and  declared,  that  no  law  ought  ever  to 
be  made,  or  have  force  in  the  said  territory,  that  shall, 
in  any  manner  whatever,  interfere  with  or  affect  pri- 
vate contracts  or  engagements,  bona  fide,  and  without 
fraud,  previously  formed. 

ART.  3d.  Religion,  morality,  and  knowledge,  being 
necessary  to  good  government  and  the  happiness  of 
mankind,  schools  and  the  means  of  education  shall 
forever  be  encouraged.  The  utmost  good  faith  shall 
always  be  observed  toward  the  Indians;  their  lands 
and  property  shall  never  be  taken  from  them  without 
their  consent;  and,  in  their  property,  rights,  and  lib- 
erty, they  shall  never  be  invaded  or  disturbed,  unless 
in  just  and  lawful  wars  authorized  by  Congress;  but 
laws  founded  in  justice  and  humanity,  shall,  from  time 
to  time,  be  made  for  preventing  wrongs  being  done 
to  them,  and  for  preserving  peace  and  friendship  with 
them. 

ART.  4th.  The  said  territory,  and  the  States  which 
may  be  formed  therein,  shall  forever  remain  a  part  of 
this  confederacy  of  the  United  States  of  America,  sub- 
ject to  the  Articles  of  Confederation,  and  to  such  alter- 
ations therein  as  shall  be  constitutionally  made;  and 
to  all  the  acts  and  ordinances  of  the  United  States  in 
Congress  assembled,  conformable  thereto.  The  inhab- 
itants and  settlers  in  the  said  territory  shall  be  subject 
to  pay  a  part  of  the  federal  debts  contracted  or  to  be 
contracted,  and  a  proportional  part  of  the  expenses  of 
government,  to  be  apportioned  on  them  by  Congress 
according  to  the  same  common  rule  and  measure  by 
which  apportionments  thereof  shall  be  made  on  the 
other  States;  and  the  taxes,  for  paying  their  propor- 
tion, shall  be  laid  and  levied  by  the  authority  and 
direction  of  the  legislatures  of  the  district  or  districts, 
or  new  States,  as  in  the  original  States,  within  the 


286  OUB   CONSTITUTION. 

time  agreed  upon  by  the  United  States  in  Congress 
assembled.  The  legislatures  of  those  districts  or  new 
States,  shall  never  interfere  with  the  primary  disposal 
of  the  soil  by  the  United  States  in  Congress  assembled, 
nor  with  any  regulations  Congress  may  find  necessary 
for  securing  the  title  in  such  soil  to  the  bona  fide  pur- 
chasers. No  tax  shall  be  imposed  on  lands  the  property 
of  the  United  States;  and,  in  no  case,  shall  non-resi- 
dent proprietors  be  taxed  higher  than  residents.  The 
navigable  waters  leading  into  the  Mississippi  and  St. 
Lawrence,  and  the  carrying  places  between  the  same, 
shall  be  common  highways,  and  forever  free,  as  well 
to  the  inhabitants  of  the  said  territory  as  to  the  citi- 
zens of  the  United  States,  and  those  of  any  other 
States  that  may  be  admitted  into  the  Confederacy, 
without  any  tax,  impost,  or  duty,  therefor. 

ART.  5th.  There  shall  be  formed  in  the  said  terri- 
tory, not  less  than  three  nor  more  than  five  States; 
and  the  boundaries  of  the  States,  as  soon  as  Virginia 
shall  alter  her  act  of  cession,  and  consent  to  the  same, 
shall  become  fixed  and  established  as  follows,  to  wit: 
The  Western  State  in  the  said  territory,  shall  be 
bounded  by  the  Mississippi,  the  Ohio,  and  Wabash  riv- 
ers; a  direct  line  drawn  from  the  Wabash  and  Post 
St.  Vincent's,  due  North,  to  the  territorial  line  between 
the  United  States  and  Canada;  and,  by  the  said  terri- 
torial line,  to  the  Lake  of  the  Woods  and  Mississippi. 
The  middle  State  shall  be  bounded  by  the  said  direct 
line,  the  Wabash  from  Post  Vincent's,  to  the  Ohio;  by 
the  Ohio,  by  a  direct  line,  drawn  due  North  from  the 
mouth  of  the  Great  Miami,  to  the  said  territorial  line, 
and  by  the  said  territorial  line.  The  Eastern  State 
shall  be  bounded  by  the  last  mentioned  direct  line,  the 
Ohio,  Pennsylvania,  and  the  said  territorial  line:  Pro- 
tided,  however,  and  it  is  further  understood  and 
declared,  that  the  boundaries  of  these  three  States 
shall  be  subject  so  far  to  be  altered,  that,  if  Congress 
shall  hereafter  find  it  expedient,  they  shall  have  an 
thority  to  form  one  or  two  States  in  that  part  of  the 
said  territory  which  lies  North  of  an  East  and  West 
line  drawn  through  the  Southerly  bend  or  extreme  of 


SOME   IMPORTANT   INSPIRATIONS  287 

lake  Michigan.  And,  whenever  any  of  the  said  States 
shall  have  60,000  free  inhabitants  therein,  such  State 
shall  be  admitted,  by  its  delegates,  into  the  Congress 
of  the  United  States,  on  an  equal  footing  with  the 
original  States  in  all  respects  whatever,  and  shall  be 
at  liberty  to  form  a  permanent  constitution  and  State 
government:  Provided,  the  constitution  and  govern 
ment  so  to  be  formed,  shall  be  republican,  and  in 
conformity  to  the  principles  contained  in  these  arti- 
cles; and,  so  far  as  it  can  be  consistent  with  the 
general  interest  of  the  confederacy,  such  admission 
shall  be  allowed  at  an  earlier  period,  and  when  there 
may  be  a  less  number  of  free  inhabitants  in  the  State 
than  60,000. 

ART.  6th.  There  shall  be  neither  slavery  nor  invol 
untary  servitude  in  the  said  territory,  otherwise  than 
in  the  punishment  of  crimes,  whereof  the  party  shall 
have  been  duly  convicted:  Provided  always,  That  any 
person  escaping  into  the  same,  from  whom  labor  or 
services  is  lawfully  claimed  in  any  one  of  the  original 
States,  such  fugitive  may  be  lawfully  reclaimed  and 
conveyecl  to  the  person  claiming  his  or  her  labor  or 
service  as  aforesaid. 

Done  by  the  United  States,  in  Congress  assembled,  the 
13th  day  of  July,  in  the  year  of  our  Lord  1787,  and 
of  their  sovereignty  and  independence  the  twelfth. 


APPENDIX 


THE  ARTICLES  OF  CONFEDERATION 

Articles  of  Confederation  and  Perpetual  Union  between 
the  States  of  New  Hampshire,  Massachusetts  Bay, 
Rhode  Island  and  Providence  Plantations,  Con- 
necticut, New  York,  New  Jersey,  Pennsylvania,  Dela- 
ware, Maryland,  Virginia,  North  Carolina,  South 
Carolina,  and  Georgia. 

ARTICLE  I. — The  style  of  this  Confederacy  shall  be, 
"The  United  States  of  America." 

ART.  II. — Each  State  retains  its  sovereignty,  free- 
dom, and  independence,  and  every  power,  jurisdiction, 
and  right,  which  is  not  by  this  Confederation  expressly 
delegated  to  the  United  States  in  Congress  assembled. 

ART.  III. — The  said  States  hereby  severally  enter 
into  a  firm  league  of  friendship  with  each  other,  for 
their  common  defense,  the  security  of  their  liberties, 
and  their  mutual  and  general  welfare,  binding  them- 
selves to  assist  each  other  against  all  force  offered  to, 
or  attacks  made  upon  them,  or  any  of  them,  on  account 
of  religion,  sovereignty,  trade,  or  any  other  pretense 
whatever. 

ART.  IV. — The  better  to  secure  and  perpetuate  mu- 
tual friendship  and  intercourse  among  the  people  of 
the  different  States  in  this  Union,  the  free  inhabitants 
of  each  of  these  States,  paupers,  vagabonds,  and  fugi- 
tives from  justice  excepted,  shall  be  entitled  to  all 
privileges  and  immunities  of  free  citizens  in  the  sev- 
eral States;  and  the  people  of  each  State  shall  have 
free  ingress  and  egress  to  and  from  any  other  State, 


APPENDIX  289 

and  shall  enjoy  therein  all  the  privileges  of  trade  and 
commerce  subject  to  the  same  duties,  impositions,  and 
restrictions  as  the  inhabitants  thereof  respectively; 
provided  that  such  restrictions  shall  not  extend  so 
far  as  to  prevent  the  removal  of  property  imported 
into  any  State  to  any  other  State  of  which  the  owner 
is  an  inhabitant;  provided,  also,  that  no  imposition, 
duties,  or  restriction  shall  be  laid  by  any  State  on  the 
property  of  the  United  States  or  either  of  them.  If 
any  person  guilty  of,  or  charged  with,  treason,  felony, 
or  other  high  misdemeanor  in  any  State  shall  flee  from 
justice  and  be  found  in  any  of  the  United  States,  he 
shall,  upon  demand  of  the  governor  or  executive  power 
of  the  State  from  which  he  fled,  be  delivered  up  and 
removed  to  the  State  having  jurisdiction  of  his  offense. 
Full  faith  and  credit  shall  be  given  in  each  of  these 
States  to  the  records,  acts,  and  judicial  proceedings 
of  the  courts  and  magistrates  of  every  other  State. 

ART.  V. — For  the  more  convenient  management  of 
the  general  interests  of  the  United  States,  delegates 
shall  be  annually  appointed  in  such  manner  as  the 
Legislature  of  each  State  shall  direct,  to  meet  in  Con- 
gress on  the  first  Monday  in  November,  in  every  year, 
with  a  power  reserved  to  each  State  to  recall  its  dele- 
gates, or  any  of  them,  at  any  time  within  the  year,  and 
to  send  others  in  their  stead  for  the  remainder  of  the 
year.  No  State  shall  be  represented  in  Congress  by 
less  than  two,  nor  by  more  than  seven  members;  and 
no  person  shall  be  capable  of  being  a  delegate  for  more 
than  three  years  in  any  term  of  six  years;  nor  shall 
any  person,  being  a  delegate,  be  capable  of  holding  any 
office  under  the  United  States  for  which  he,  or  another 
for  his  benefit,  receives  any  salary,  fees,  or  emolument 
of  any  kind.  Each  State  shall  maintain  its  own  dele- 
gates in  any  meeting  of  the  States  and  while  they  act 
as  members  of  the  Committee  of  the  States.  In  de- 
termining questions  in  the  United  States  in  Congress 
assembled,  each  State  shall  have  one  vote.  Freedom 
of  speech  and  debate  in  Congress  shall  not  be  im- 
peached or  questioned  in  any  court  or  place  out  of 
Congress;  and  the  members  of  Congress  shall  be  pro- 


290  OUR   CONSTITUTION 

teoted  in  their  persons  from  arrests  and  imprisonment 
during  the  time  of  their  going  to  and  from,  and  attend- 
ance on,  Congress,  except  for  treason,  felony,  or  breach 
of  the  peace. 

ART.  VI. — No  State,  without  the  consent  of  the 
United  States,  in  Congress  assembled,  shall  send  any 
embassy  to,  or  receive  any  embassy  from,  or  enter  into 
any  conference,  agreement,  alliance,  or  treaty  with  any 
king,  prince,  or  state ;  nor  shall  any  person  holding  any 
office  of  profit  or  trust  under  the  United  States,  or  any 
of  them,  accept  of  any  present,  emolument,  office,  or 
title  of  any  kind  whatever  from  any  king,  prince,  or 
foreign  state;  nor  shall  the  United  States,  in  Congress 
assembled,  or  any  of  them,  grant  any  title  of  nobility. 

No  two  or  more  States  shall  enter  into  any  treaty, 
confederation,  or  alliance  whatever  between  them, 
without  the  consent  of  the  United  States,  in  Congress 
assembled,  specifying  accurately  the  purposes  for 
which  the  same  is  to  be  entered  into,  and  how  long  it 
shall  continue. 

No  State  shall  lay  any  imposts  or  duties  which  may 
interfere  with  any  stipulations  in  treaties  entered  into 
by  the  United  States,  in  Congress  assembled,  with  any 
king,  prince,  or  state,  in  pursuance  of  any  treaties 
already  proposed  by  Congress  to  the  courts  of  France 
and  Spain. 

No  vessel  of  war  shall  be  kept  up  in  time  of  peace 
by  any  State,  except  such  number  only  as  shall  be 
deemed  necessary  by  the  United  States,  in  Congress 
assembled,  for  the  defense  of  such  State  or  its  trade, 
nor  shall  any  body  of  forces  be  kept  up  by  any  State  in 
time  of  peace  except  such  number  only  as,  in  the  judg- 
ment of  the  United  States,  in  Congress  assembled, 
shall  be  deemed  requisite  to  garrison  the  forts  neces- 
sary for  the  defense  of  such  State;  but  every  State 
shall  always  keep  up  a  well-regulated  and  disciplined 
militia,  sufficiently  armed  and  accoutred,  and  shall  pro- 
vide and  constantly  have  ready  for  use  in  public  stores 
a  due  number  of  field-pieces  and  tents,  and  a  proper 
quantity  of  arms,  ammunition,  and  camp  equipage. 

No  State  shall  engage  in  any  war  without  the  con- 


APPENDIX 

sent  of  the  United  States,  in  Congress  assembled, 
unless  such  State  be  actually  invaded  by  enemies,  or 
shall  have  received  certain  advice  of  a  resolution  being 
formed  by  some  nation  of  Indians  to  invade  such  State, 
and  the  danger  is  so  imminent  as  not  to  admit  of  a 
delay  till  the  United  States,  in  Congress  assembled, 
can  be  consulted;  nor  shall  any  State  grant  commis- 
sions to  any  ships  or  vessels  of  war,  nor  letters  of 
marque  or  reprisal,  except  it  be  after  a  declaration  of 
war  by  the  United  States,  in  Congress  assembled,  and 
then  only  against  the  kingdom  or  state,  and  the  sub- 
jects thereof,  against  which  war  has  been  so  declared, 
and  under  such  regulations  as  shall  be  established  by 
the  United  States,  in  Congress  assembled,  unless  such 
State  be  infested  by  pirates,  in  which  case  vessels  of 
war  may  be  fitted  out  for  that  occasion,  and  kept  so 
long  as  the  danger  shall  continue,  or  until  the  United 
States,  in  Congress  assembled,  shall  determine  other- 
wise. 

ART.  VII. — When  land  forces  are  raised  byany  State 
for  the  common  defense,  all  officers  of  or  under  the 
rank  of  Colonel  shall  be  appointed  by  the  Legislature 
of  each  State  respectively  by  whom  such  forces  shall 
be  raised,  or  in  such  manner  as  such  State  shall  direct, 
and  all  vacancies  shall  be  filled  up  by  the  State  which 
first  made  the  appointment. 

ART.  VIII. — All  charges  of  war,  and  all  other  ex- 
penses that  shall  be  incurred  for  the  common  defense, 
or  general  welfare,  and  allowed  by  the  United  States, 
in  Congress  assembled,  shall  be  defrayed  out  of  a 
common  treasury,  which  shall  be  supplied  by  the  sev- 
eral States  in  proportion  to  the  value  of  all  land  within 
each  State,  granted  to,  or  surveyed  for,  any  person, 
as  such  land  and  the  buildings  and  improvements 
thereon  shall  be  estimated,  according  to  such  mode  as 
the  United  States,  in  Congress  assembled,  shall,  from 
time  to  time,  direct  and  appoint.  The  taxes  for  paying 
that  proportion  shall  be  laid  and  levied  by  the  author- 
ity and  direction  of  the  Legislatures  of  the  several 
States,  within  the  time  agreed  upon  by  the  United 
States,  in  Congress  assembled. 


292  OUR  CONSTITUTION 

ART.  IX. — The  United  States,  in  Congress  asseni 
bled,  shall  have  the  sole  and  exclusive  right  and  power 
of  determining  on  peace  and  war,  except  in  the  cases 
mentioned  in  the  sixth  Article;  of  sending  and  receiv- 
ing ambassadors;  entering  into  treaties  and  alliances, 
provided  that  no  treaty  of  commerce  shall  be  made, 
whereby  the  legislative  power  of  the  respective  States 
shall  be  restrained  from  imposing  such  imposts  and 
duties  on  foreigners  as  their  own  people  are  subjected 
to,  or  from  prohibiting  the  exportation  or  importation 
of  any  species  of  goods  or  commodities  whatever;  of 
establishing  rules  for  deciding,  in  all  cases,  what  cap- 
tures on  land  and  water  shall  be  legal,  and  in  what 
manner  prizes  taken  by  land  or  naval  forces  in  the 
service  of  the  United  States  shall  be  divided  or  appro- 
priated; of  granting  letters  of  marque  and  reprisal  in 
times  of  peace;  appointing  courts  for  the  trial  of  pira- 
cies and  felonies  committed  on  the  high  seas;  and 
establishing  courts  for  receiving  and  determining 
finally  appeals  in  all  cases  of  captures;  provided  that 
no  member  of  Congress  shall  be  appointed  a  judge  of 
any  of  the  said  courts. 

The  United  States,  in  Congress  assembled,  shall  also 
be  the  last  resort  on  appeal  in  all  disputes  and  differ- 
ences now  subsisting,  or  that  hereafter  may  arise  be- 
tween two  or  more  States  concerning  boundary,  juris- 
diction, or  any  other  cause  whatever;  which  authority 
shall  always  be  exercised  in  the  manner  following: 
Whenever  the  legislative  or  executive  authority,  or 
lawful  agent  of  any  State  in  controversy  with  another, 
shall  present  a  petition  to  Congress,  stating  the  matter 
in  question,  and  praying  for  a  hearing,  notice  thereof 
shall  be  given  by  order  of  Congress  to  the  legislative 
or  executive  authority  of  the  other  State  in  contro- 
versy, and  a  day  assigned  for  the  appearance  of  the 
parties  by  their  lawful  agents,  who  shall  then  be  di- 
rected to  appoint,  by  joint  consent,  commissioners  or 
judges  to  constitute  a  court  for  hearing  and  determin- 
ing the  matter  in  question;  but  if  they  cannot  agree. 
Congress  shall  name  three  persons  out  of  each  of  the 
United  States,  and  from  the  list  of  such  persons  each 


APPENDIX  293 

party  shall  alternately  strike  out  one,  the  petitioners 
beginning,  until  the  number  shall  be  reduced  to  thir 
teen;  and  from  that  number  not  less  than  seven  nor 
more  than  nine  names,  as  Congress  shall  direct,  shall, 
in  the  presence  of  Congress,  be  drawn  out  by  lot;  and 
the  persons  whose  names  shall  be  so  drawn,  or  any  five 
of  them,  shall  be  commissioners  or  judges,  to  hear  and 
finally  determine  the  controversy,  so  always  as  a  major 
part  of  the  judges  who  shall  hear  the  cause  shall  agree 
in  the  determination ;  and  if  either  party  shall  neglect 
to  attend  at  the  day  appointed,  without  showing  rea- 
sons which  Congress  shall  judge  sufficient,  or  being 
present,  shall  refuse  to  strike,  the  Congress  shall  pro- 
ceed to  nominate  three  persons  out  of  each  State,  and 
the  secretary  of  Congress  shall  strike  in  behalf  of 
such  party  absent  or  refusing;  and  the  judgment  and 
sentence  of  the  court,  to  be  appointed  in  the  manner 
before  prescribed,  shall  be  final  and  conclusive;  and  if 
any  of  the  parties  shall  refuse  to  submit  to  the  author- 
ity  of  such  court,  or  to  appear  or  defend  their  claim  or 
cause,  the  court  shall  nevertheless  proceed  to  pro 
nounce  sentence  or  judgment,  which  shall  In  like  man- 
ner be  final  and  decisive;  the  judgment  or  sentence 
and  other  proceedings  being  in  either  case  transmitted 
to  Congress,  and  lodged  among  the  acts  of  Congress 
for  the  security  of  the  parties  concerned;  provided, 
that  every  commissioner,  before  he  sits  in  judgment, 
shall  take  an  oath,  to  be  administered  by  one  of  the 
judges  of  the  supreme  or  superior  court  of  the  State 
where  the  cause  shall  be  tried,  "well  and  truly  to  hear 
and  determine  the  matter  in  question,  according  to  the 
best  of  his  judgment,  without  favor,  affection,  or  hope 
of  reward."  Provided,  also,  that  no  State  shall  be  de- 
prived of  territory  for  the  benefit  of  the  United  States. 
All  controversies  concerning  the  private  right  of  soil 
claimed  under  different  grants  of  two  or  more  States, 
whose  jurisdictions,  as  they  may  respect  such  lands, 
and  the  States  which  passed  such  grants  are  adjusted, 
the  said  grants  or  either  of  them  being  at  the  same 
time  claimed  to  have  originated  antecedent  to  such 
settlement  of  jurisdiction,  shall,  on  the  petition  of 


294  OUR   CONSTITUTION 

either  party  to  the  Congress  of  the  United  States,  be 
finally  determined,  as  near  as  may  be,  in  the  same 
manner  as  is  before  prescribed  for  deciding  disputes 
respecting  territorial  jurisdiction  between  different 
States. 

The  United  States,  in  Congress  assembled,  shall  also 
have  the  sole  and  exclusive  right  and  power  of  regu- 
lating the  alloy  and  value  of  coin  struck  by  their  own 
authority,  or  by  that  of  the  respective  States;  fixing 
the  standard  of  weights  and  measures  throughout  the 
United  States;  regulating  the  trade  and  managing  all 
affairs  with  the  Indians,  not  members  of  any  of  the 
States;  provided  that  the  legislative  right  of  any  State, 
within  its  own  limits,  be  not  infringed  or  violated; 
establishing  and  regulating  post-offices  from  one  State 
to  another,  throughout  all  the  United  States,  and  ex- 
acting such  postage  on  the  papers  passing  through  the 
same  as  may  be  requisite  to  defray  the  expenses  of 
the  said  office;  appointing  all  officers  of  the  land 
forces  in  the  service  of  the  United  States,  except- 
ing regimental  officers;  appointing  all  the  officers 
of  the  naval  forces,  and  commissioning  all  officers 
whatever  in  the  service  of  the  United  States;  mak- 
ing rules  for  the  government  and  regulation  of 
the  said  land  and  naval  forces,  and  directing  their 
operations. 

The  United  States,  in  Congress  assembled,  shall 
have  authority  to  appoint  a  committee,  to  sit  in  the 
recess  of  Congress,  to  be  denominated  "A  Committee 
of  the  States,"  and  to  consist  of  one  delegate  from 
each  State,  and  to  appoint  such  other  committees  and 
civil  officers  as  may  be  necessary  for  managing  the 
general  affairs  of  the  United  States  under  their  direc- 
tion; to  appoint  one  of  their  number  to  preside;  pro- 
vided that  no  person  be  allowed  to  serve  in  the  office 
of  president  more  than  one  year  in  any  term  of  three 
years;  to  ascertain  the  necessary  sums  of  money  to 
be  raised  for  the  service  of  the  United  States,  and  to 
appropriate  and  apply  the  same  for  defraying  the 
public  expenses;  to  borrow  money  or  emit  bills  on  the 
credit  of  the  United  States,  transmitting  every  half 


APPENDIX  295 

year  to  the  respective  States  an  account  of  the  sums 
of  money  so  borrowed  or  emitted;  to  build  and  equip 
a  navy;  to  agree  upon  the  number  of  land  forces,  and 
to  make  requisitions  from  each  State  for  its  quota, 
in  proportion  to  the  number  of  white  inhabitants  in 
such  State,  which  requisition  shall  be  binding;  and 
thereupon  the  Legislature  of  each  State  shall  appoint 
the  regimental  officers,  raise  the  men,  and  clothe,  arm, 
and  equip  them  in  a  soldier-like  manner,  at  the  expense 
of  the  United  States;  and  the  officers  and  men  so 
clothed,  armed,  and  equipped  shall  march  to  the  place 
appointed,  and  within  the  time  agreed  on  by  the 
United  States,  in  Congress  assembled;  but  if  the 
United  States,  in  Congress  assembled,  shall,  on  consid- 
eration of  circumstances,  judge  proper  that  any  State 
should  not  raise  men,  or  should  raise  a  smaller  num- 
ber than  its  quota,  and  that  any  other  State  should 
raise  a  greater  number  of  men  than  the  quota  thereof, 
such  extra  number  shall  be  raised,  officered,  clothed, 
armed,  and  equipped  in  the  same  manner  as  the  quota 
of  such  State,  unless  the  Legislature  of  such  State 
shall  judge  that  such  extra  number  can  not  be  safely 
spared  out  of  the  same,  in  which  case  they  shall  raise, 
officer,  clothe,  arm,  and  equip  as  many  of  such  extra 
number  as  they  judge  can  be  safely  spared,  and  the 
officers  and  men  so  clothed,  armed,  and  equipped  shall 
march  to  the  place  appointed,  and  within  the  time 
agreed  on  by  the  United  States,  in  Congress  assem- 
bled. 

The  United  States,  in  Congress  assembled,  shall 
never  engage  in  war,  nor  grant  letters  of  marque  or 
reprisal  in  time  of  peace,  nor  enter  into  any  treaties 
or  alliances,  nor  coin  money,  nor  regulate  the  value 
thereof,  nor  ascertain  the  sums  and  expenses  neces- 
sary for  the  defense  and  welfare  of  the  United  States, 
or  any  of  them,  nor  emit  bills,  nor  borrow  money  on 
the  credit  of  the  United  States,  nor  appropriate  money, 
nor  agree  upon  the  number  of  vessels  of  war  to  be 
built  or  purchased,  or  the  number  of  land  or  sea  forces 
to  be  raised,  nor  appoint  a  commander-in-chief  of  the 
army  or  navy,  unless  nine  States  assent  to  the  same. 


296  OUR  CONSTITUTION 

nor  shall  a  question  on  any  other  point,  except  for 
adjourning  from  day  to  day,  be  determined,  unless  by 
the  votes  of  a  majority  of  the  United  States,  in  Con- 
gress assembled. 

The  Congress  of  the  United  States  shall  have  power 
to  adjourn  to  any  time  within  the  year,  and  to  any  place 
within  the  United  States,  so  that  no  period  of  adjourn- 
ment be  for  a  longer  duration  than  the  space  of  six 
months,  and  shall  publish  the  journal  of  their  proceed- 
ings monthly,  except  such  parts  thereof  relating  to 
treaties,  alliances,  or  military  operations  as  in  their 
judgment  require  secresy;  and  the  yeas  and  nays  of 
the  delegates  of  each  State,  on  any  question,  shall 
be  entered  on  the  journal  when  it  is  desired  by  any 
delegate;  and  the  delegates  of  a  State,  or  any  of  them, 
at  his  or  their  request,  shall  be  furnished  with  a 
transcript  of  the  said  journal  except  such  parts  as 
are  above  exempted,  to  lay  before  the  Legislatures  of 
the  several  States. 

ART.  X. — The  Committee  of  the  States,  or  any  nine 
of  them,  shall  be  authorized  to  execute,  in  the  recess 
of  Congress,  such  of  the  powers  of  Congress  as  the 
United  States,  in  Congress  assembled,  by  the  consent 
of  nine  States,  shall,  from  time  to  time,  think  expedient 
to  vest  them  with;  provided  that  no  power  be  dele- 
gated to  the  said  Committee,  for  the  exercise  of  which, 
by  the  Articles  of  Confederation,  the  voice  of  nine 
States  in  the  Congress  of  the  United  States  assembled 
is  requisite. 

ART.  XI. — Canada,  acceding  to  this  Confederation, 
and  joining  in  the  measures  of  the  United  States,  shall 
be  admitted  into,  and  entitled  to  all  the  advantages  of 
this  Union ;  but  no  other  colony  shall  be  admitted  into 
the  same,  unless  such  admission  be  agreed  to  by  nine 
States. 

ART.  XII. — All  bills  of  credit  emitted,  moneys  bor- 
rowed, and  debts  contracted  by  or  under  the  authority 
of  Congress,  before  the  assembling  of  the  United 
States,  in  pursuance  of  the  present  Confederation, 
shall  be  deemed  and  considered  as  a  charge  against 
the  United  States,  for  payment  and  satisfaction 


APPENDIX  297 

whereof  the  United  States  and  the  public  faith  are 
hereby  solemnly  pledged. 

ART.  XIII. — Every  State  shall  abide  by  the  deter- 
minations of  the  United  States,  in  Congress  assembled, 
on  all  questions  which  by  this  Confederation  are  sub- 
mitted to  them.  And  the  Articles  of  this  Confedera- 
tion shall  be  inviolably  observed  by  every  State,  and 
the  Union  shall  be  perpetual ;  nor  shall  any  alteration 
at  any  time  hereafter  be  made  in  any  of  them,  unless 
such  alteration  be  agreed  to  in  a  Congress  of  the 
United  States,  and  be  afterwards  confirmed  by  the 
Legislatures  of  every  State. 

AND  WHEREAS  it  hath  pleased  the  great  Governor  of 
the  world  to  incline  the  hearts  of  the  Legislatures  we 
respectively  represent  in  Congress  to  approve  of,  and 
to  authorize  us  to  ratify,  the  said  Articles  of  Confed- 
eration and  perpetual  Union,  know  ye,  that  we,  the 
undersigned  delegates,  by  virtue  of  the  power  and 
authority  to  us  given  for  that  purpose,  do,  by  these 
presents,  in  the  name  and  in  behalf  of  our  respective 
constituents,  fully  and  entirely  ratify  and  confirm  each 
and  every  of  the  said  Articles  of  Confederation  and 
perpetual  Union,  and  all  and  singular  the  matters  and 
things  therein  contained.  And  we  do  further  solemnly 
plight  and  engage  the  faith  of  our  respective  constitu- 
ents, that  they  shall  abide  by  the  determinations  of 
the  United  States,  in  Congress  assembled,  on  all  ques- 
tions which  by  the  said  Confederation  are  submitted 
to  them;  and  that  the  Articles  thereof  shall  be  invio- 
lably observed  by  the  States  we  respectively  represent, 
and  that  the  Union  shall  be  perpetual. 

In  witness  whereof  we  have  hereunto  set  our  hands 
in  Congress.  Done  at  Philadelphia,  in  the  State 
of  Pennsylvania  the  ninth  day  of  July  in  the  year 
of  our  Lord  one  thousand  seven  hundred  and  sev- 
enty-eight, and  in  the  third  year  of  the  independ- 
ence of  America. 


THE  CONSTITUTION  OF  THE  UNITED  STATES 

WE,  the  people  of  the  United  States,  in  order  to  form 
a  more  perfect  union,  establish  justice,  insure  domes- 
tic tranquillity,  provide  for  the  common  defense, 
promote  the  general  welfare,  and  secure  the  blessings 
of  liberty  to  ourselves  and  our  posterity,  do  ordain 
and  establish  this  Constitution  for  the  United  State* 
of  America. 

ARTICLE  I 

SECTION   I 

All  legislative  powers  herein  granted  shall  be  vested 
in  a  Congress  of  the  United  States,  which  shall  con- 
sist of  a  Senate  and  House  of  Representatives. 

SECTION    II 

The  House  of  Representatives  shall  be  composed  of 
members  chosen  every  second  year  by  the  people  of 
the  several  States,  and  the  electors  in  each  State  shall 
have  the  qualifications  requisite  for  electors  of  the 
most  numerous  branch  of  the  State  legislature. 

No  person  shall  be  a  Representative  who  shall  not 
have  attained  the  age  of  twenty-five  years,  and  been 
seven  years  a  citizen  of  the  United  States,  and  who 
shall  not,  when  elected,  be  an  inhabitant  of  that  State 
in  which  he  shall  be  chosen. 

Representatives  and  direct  taxes  shall  be  appor- 
tioned among  the  several  States  which  may  be  included 
within  this  Union,  according  to  their  respective  num- 


APPENDIX  299 

bers,  which  shall  be  determined  by  adding  to  the  whole 
number  of  free  persons,  including  those  bound  to  ser- 
vice for  a  term  of  years,  and  excluding  Indians  not 
taxed,  three-fifths  of  all  other  persons.  The  actual 
enumeration  shall  be  made  within  three  years  after 
the  first  meeting  of  the  Congress  of  the  United  States, 
and  within  every  subsequent  term  of  ten  years,  in  such 
manner  as  they  shall  by  law  direct.  The  number  of 
Representatives  shall  not  exceed  one  for  every  thirty 
thousand,  but  each  State  shall  have  at  least  one  Rep- 
resentative; and  until  such  enumeration  shall  be  made, 
the  State  of  New  Hampshire  shall  be  entitled  to  choose 
three,  Massachusetts  eight,  Rhode  Island  and  Providence 
Plantations  one,  Connecticut  five,  New  York  six,  New 
Jersey  four,  Pennsylvania  eight,  Delaware  one,  Mary- 
land six,  Virginia  ten,  North  Carolina  five,  8outh 
Carolina  five,  and  Georgia  three. 

When  vacancies  happen  in  the  representation  from 
any  State,  the  executive  authority  thereof  shall  issue 
writs  of  election  to  fill  such  vacancies. 

The  House  of  Representatives  shall  choose  their 
Speaker  and  other  officers,  and  shall  have  the  sole 
power  of  impeachment. 

SECTION  III 

The  Senate  of  the  United  States  shall  be  composed 
of  two  Senators  from  each  State,  chosen  by  the  legisla- 
ture thereof,  for  six  years;  and  each  Senator  shall  have 
one  vote. 

Immediately  after  they  shall  be  assembled  in  con- 
sequence of  the  first  election,  they  shall  be  divided 
as  equally  as  may  be  into  three  classes.  The  seats  of 
the  Senators  of  the  first  class  shall  be  vacated  at  the 
expiration  of  the  second  year;  of  the  second  class,  at 
the  expiration  of  the  fourth  year,  and  of  the  third 
class,  at  the  expiration  of  the  sixth  year,  so  that  one- 
third  may  be  chosen  every  second  year;  and  if  vacan- 
cies happen  by  resignation  or  otherwise  during  the 
recess  of  the  legislature  of  any  State,  the  executive 
thereof  may  make  temporary  appointments  until  the 


300  OUR   CONSTITUTION 

next  meeting  of  the  legislature,  which  shall  then  fill 
such  vacancies. 

No  person  shall  be  a  Senator  who  shall  not  have 
attained  to  the  age  of  thirty  years,  and  been  nine  years 
a  citizen  of  the  United  States,  and  who  shall  not,  when 
elected,  be  an  inhabitant  of  that  State  for  which  he 
shall  be  chosen. 

The  Vice-President  of  the  United  States  shall  be 
President  of  the  Senate,  but  shall  have  no  vote,  unless 
they  be  equally  divided. 

The  Senate  shall  choose  their  other  officers,  and 
also  a  President  pro  tempore  in  the  absence  of  the  Vice- 
President,  or  when  he  shall  exercise  the  office  of  Presi- 
dent of  the  United  States. 

The  Senate  shall  have  the  sole  power  to  try  all 
impeachments.  When  sitting  for  that  purpose,  they 
shall  be  on  oath  or  affirmation.  When  the  President 
of  the  United  States  is  tried,  the  Chief  Justice  shall 
preside:  and  no  person  shall  be  convicted  without  the 
concurrence  of  two  thirds  of  the  members  present. 

Judgment  in  cases  of  impeachment  shall  not  extend 
further  than  to  removal  from  office,  and  disqualifica- 
tion to  hold  and  enjoy  any  office  of  honor,  trust,  or 
profit  under  the  United  States;  but  the  party  convicted 
shall,  nevertheless,  be  liable  and  subject  to  indict- 
ment, trial,  judgment,  and  punishment,  according  to 
law. 

SECTION   IV 

The  times,  places,  and  manner  of  holding  elections 
for  Senators  and  Representatives  shall  be  prescribed 
in  each  State  by  the  legislature  thereof;  but  the  Con- 
gress may  at  any  time  by  law  make  or  alter  such  regu- 
lations, except  as  to  the  places  of  choosing  Senators. 

The  Congress  shall  assemble  at  least  once  in  every 
year,  and  such  meeting  shall  be  on  the  first  Monday 
in  December,  unless  they  shall  by  law  appoint  a  differ- 
ent day. 


APPENDIX  301 


SECTION   V 

Each  house  shall  be  the  judge  of  the  elections,  re- 
turns, and  qualifications  of  its  own  members,  and  a, 
majority  of  each  shall  constitute  a  quorum  to  do  busi- 
ness; but  a  smaller  number  may  adjourn  from  day  to 
day,  and  may  be  authorized  to  compel  the  attendance 
of  absent  members,  in  such  manner,  and  under  such 
penalties,  as  each  house  may  provide. 

Each  house  may  determine  the  rules  of  its  proceed- 
ings, punish  its  members  for  disorderly  behavior,  and 
with  the  concurrence  of  two  thirds,  expel  a  member. 

Each  house  shall  keep  a  journal  of  its  proceedings, 
and  from  time  to  time  publish  the  same,  except- 
ing such  parts  as  may  in  their  judgment  require 
secrecy,  and  the  yeas  and  nays  of  the  members  of 
either  house  on  any  question  shall,  at  the  desire  of 
one  fifth  of  those  present,  be  entered  on  the  journal. 

Neither  house,  during  the  session  of  Congress,  shall, 
without  the  consent  of  the  other,  adjourn  for  more 
than  three  days,  nor  to  any  other  place  than  that  in 
which  the  two  houses  shall  be  sitting. 

SECTION   VI 

The  Senators  and  Representatives  shall  receive  a 
compensation  for  their  services,  to  be  ascertained  by 
law  and  paid  out  of  the  Treasury  of  the  United  States. 
They  shall,  in  all  cases  except  treason,  felony,  and 
breach  of  the  peace,  be  privileged  from  arrest  during 
their  attendance  at  the  session  of  their  respective 
houses,  and  in  going  to  and  returning  from  the  same; 
and  for  any  speech  or  debate  in  either  house  they  shall 
not  be  questioned  in  any  other  place. 

No  Senator  or  Representative  shall,  during  the  time 
for  which  he  was  elected,  be  appointed  to  any  civil 
office  under  the  authority  of  the  United  States,  which 
shall  have  been  created,  or  the  emoluments  whereof 
shall  have  been  increased  during  such  time;  and  no 
person  holding  any  office  under  the  United  States  shall 
be  a  member  of  either  house  during  his  continuance 
in  office. 


302  OUR   CONSTITUTION 


SECTION  VII 

All  bills  for  raising  revenue  shall  originate  in  the 
House  of  Representatives ;  but  the  Senate  may  propose 
or  concur  with  amendments  as  on  other  bills. 

Every  bill  which  shall  have  passed  the  House  of 
Representatives  and  the  Senate  shall,  before  it  be- 
come a  law,  be  presented  to  the  President  of  the  United 
States;  if  he  approve  he  shall  sign  it,  but  if  not  he 
shall  return  it,  with  his  objections,  to  that  house  in 
which  it  shall  have  originated,  who  shall  enter  the 
objections  at  large  on  their  journal  and  proceed  to 
reconsider  it.  If  after  such  reconsideration  two  thirds 
of  that  house  shall  agree  to  pass  the  bill,  it  shall  be 
sent,  together  with  the  objections,  to  the  other  house, 
by  which  it  shall  likewise  be  reconsidered,  and  if  ap* 
proved  by  two  thirds  of  that  house  it  shall  become  a 
law.  But  in  all  such  cases  the  votes  of  both  houses 
shall  be  determined  by  yeas  and  nays,  and  the  names 
of  the  persons  voting  for  and  against  the  bill  shall 
be  entered  on  the  journal  of  each  house  respectively. 
If  any  bill  shall  not  be  returned  by  the  President 
within  ten  days  (Sundays  excepted)  after  it  shall  have 
been  presented  to  him,  the  same  shall  be  a  law,  in  like 
manner  as  if  he  had  signed  it,  unless  the  Congress 
by  their  adjournment  prevent  its  return,  in  which  case 
it  shall  not  be  a  law. 

Every  order,  resolution,  or  vote  to  which  the  con- 
currence of  the  Senate  and  House  of  Representatives 
may  be  necessary  (except  on  a  question  of  adjourn- 
ment) shall  be  presented  to  the  President  of  the  United 
States;  and  before  the  same  shall  take  effect,  shall 
be  approved  by  him,  or  being  disapproved  by  him,  shall 
be  repassed  by  two  thirds  of  the  Senate  and  House  of 
Representatives,  according  to  the  rules  and  limitations 
prescribed  in  the  case  of  a  bill. 

SECTION    VIII 

The  Congress  shall  have  power  to  lay  and  collect 
taxes,  duties,  imposts,  and  excises,  to  pay  the  debts 


APPENDIX  303 

and  provide  for  the  common  defense  and  general  wel- 
fare of  the  United  States;  but  all  duties,  imposts, 
and  exercises  shall  be  uniform  throughout  the  United 
States ; 

To  borrow  money  on  the  credit  of  the  United  States ; 

To  regulate  commerce  with  foreign  nations  and 
among  the  several  States,  and  with  the  Indian  tribes; 

To  establish  an  uniform  rule  of  naturalization,  and 
uniform  laws  on  the  subject  of  bankruptcies  through- 
out the  United  States; 

To  coin  money,  regulate  the  value  thereof,  and  of 
foreign  coin,  and  fix  the  standard  of  weights  and  meas- 
ures; 

To  provide  for  the  punishment  of  counterfeiting  the 
securities  and  current  coin  of  the  United  States; 

To  establish  post-offices  and  post-roads; 

To  promote  the  progress  of  science  and  useful  arts 
by  securing  for  limited  times  to  authors  and  inventors 
the  exclusive  right  to  their  respective  writings  and 
discoveries; 

To  constitute  tribunals  inferior  to  the  Supreme 
Court; 

To  define  and  punish  piracies  and  felonies  commit- 
ted on  the  high  seas  and  offenses  against  the  law  of 
nations; 

To  declare  war,  grant  letters  of  marque  and  reprisal, 
and  make  rules  concerning  captures  on  land  and 
water; 

To  raise  and  support  armies,  but  no  appropriation 
of  money  to  that  use  shall  be  for  a  longer  term  than 
two  years; 

To  provide  and  maintain  a  navy; 

To  make  rules  for  the  government  and  regulation 
of  the  land  and  naval  forces ; 

To  provide  for  calling  forth  the  militia  to  execute 
the  laws  of  the  Union,  suppress  insurrections,  and 
repel  invasions; 

To  provide  for  organizing,  arming,  and  disciplining 
the  militia,  and  for  governing  such  part  of  them  as  may 
be  employed  in  the  service  of  the  United  States,  re- 
serving to  the  States  respectively  the  appointment  of 


304  OUR   CONSTITUTION 

the  officers,  and  the  authority  of  training  the  militia 
according  to  the  discipline  prescribed  by  Congress ; 

To  exercise  exclusive  legislation  in  all  cases  what- 
soever over  such  district  (not  exceeding  ten  miles 
square)  as  may,  by  cession  of  particular  States  and 
the  acceptance  of  Congress,  become  the  seat  of  the 
Government  of  the  United  States,  and  to  exercise  like 
authority  over  all  places  purchased  by  the  consent  of 
the  legislature  of  the  State  in  which  the  same  shall 
be,  for  the  erection  of  forts,  magazines,  arsenals,  dock- 
yards, and  other  needful  buildings;  and 

To  make  all  laws  which  shall  be  necessary  and 
proper  for  carrying  into  execution  the  foregoing  pow- 
ers, and  all  other  powers  vested  by  this  Constitution 
in  the  Government  of  the  United  States,  or  in  any 
department  or  officer  thereof. 

SECTION    IX 

The  migration  or  importation  of  such  persons  as 
any  of  the  States  now  existing  shall  think  proper  to 
admit  shall  not  be  prohibited  by  the  Congress  prior 
to  the  year  one  thousand  eight  hundred  and  eight,  but 
a  tax  or  duty  may  be  imposed  on  such  importation, 
not  exceeding  ten  dollars  for  each  person. 

The  privilege  of  the  writ  of  habeas  corpus  shall  not 
be  suspended,  unless  when  in  cases  of  rebellion  or 
invasion  the  public  safety  may  require  it. 

No  bill  of  attainder  or  ex  post  facto  law  shall  be 
passed. 

No  capitation  or  other  direct  tax  shall  be  laid,  un- 
less in  proportion  to  the  census  or  enumeration  here- 
inbefore directed  to  be  taken. 

No  tax  or  duty  shall  be  laid  on  articles  exported 
from  any  State. 

No  preference  shall  be  given  by  any  regulation  of 
commerce  or  revenue  to  the  ports  of  one  State  over 
those  of  another;  nor  shall  vessels  bound  to  or  from 
one  State  be  obliged  to  enter,  clear,  or  pay  duties  in 
another. 

No  money  shall  be  drawn  from  the  Treasury  but  in 


APPENDIX  305 

consequence  of  appropriations  made  by  law;  and  a 
regular  statement  and  account  of  the  receipts  and 
expenditures  of  all  public  money  shall  be  published 
from  time  to  time. 

No  title  of  nobility  shall  be  granted  by  the  United 
States;  and  no  person  holding  any  office  of  profit  or 
trust  under  them  shall,  without  the  consent  of  the 
Congress,  accept  of  any  present,  emolument,  office,  or 
title,  of  any  kind  whatever,  from  any  king,  prince,  or 
foreign  State-. 

SECTION    X 

No  State  shall  enter  into  any  treaty,  alliance,  or 
confederation;  grant  letters  of  marque  and  reprisal; 
coin  money;  emit  bills  of  credit;  make  anything  but 
gold  and  silver  coin  a  tender  in  payment  of  debts;  pass 
any  bill  of  attainder,  ex  post  facto  law,  or  law  impair 
ing  the  obligation  of  contracts,  or  grant  any  title  of 
nobility. 

No  State  shall,  without  the  consent  of  Congress, 
lay  any  imposts  or  duties  on  imports  or  exports,  except 
what  may  be  absolutely  necessary  for  executing  its 
inspection  laws;  and  the  net  produce  of  all  duties  and 
imposts,  laid  by  any  State  on  imports  or  exports,  shall 
be  for  the  use  of  the  Treasury  of  the  United  States; 
and  all  such  laws  shall  be  subject  to  the  revision  and 
control  of  the  Congress. 

No  State  shall,  without  the  consent  of  Congress,  lay 
any  duty  of  tonnage,  keep  troops  or  ships  of  war  in 
time  of  peace,  enter  into  any  agreement  or  compact 
with  another  State  or  with  a  foreign  power,  or  engage 
in  war,  unless  actually  invaded  or  in  such  imminent 
danger  as  will  not  admit  of  delay. 

ARTICLE  II 

SECTION    I 

The  executive  power  shall  be  vested  in  a  President 
of  the  United  States  of  America.  He  shall  hold  his 
office  during  the  term  of  four  years,  and  together  with 


306  OUB   CONSTITUTION 

the  Vice-President,  chosen  for    the    same    term,  be 
elected  as  follows: 

Each  State  shall  appoint,  in  such  manner  as  the 
legislature  thereof  may  direct,  a  number  of  electors, 
equal  to  the  whole  number  of  Senators  and  Represen- 
tatives to  which  the  State  may  be  entitled  in  the  Con 
gress;  but  no  Senator  or  Representative,  or  person 
holding  an  office  of  trust  or  profit  under  the  United 
States,  shall  be  appointed  an  elector. 

[The  electors  shall  meet  in  their  respective  States 
and  vote  by  ballot  for  two  persons,  of  whom  one  at 
least  shall  not  be  an  inhabitant  of  the  same  State  with 
themselves.  And  they  shall  make  a  list  of  all  the  per- 
sons voted  for,  and  of  the  number  of  votes  for  each; 
which  list  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  seat  of  government  of  the  United  States, 
directed  to  the  President  of  the  Senate.  The  President 
of  the  Senate  shall,  in  the  presence  of  the  Senate  and 
House  of  Representatives,  open  all  the  certificates,  and 
the  votes  shall  then  be  counted.  The  person  having 
the  greatest  number  of  votes  shall  be  the  president, 
if  such  number  be  a  majority  of  the  whole  number 
of  electors  appointed;  and  if  there  be  more  than  one 
who  have  such  majority,  and  have  an  equal  number 
of  votes,  then  the  House  of  Representatives  shall  im- 
mediately choose  by  ballot  one  of  them  for  President ; 
and  if  no  person  have  a  majority,  then  from  the  five 
highest  on  the  list  the  said  House  shall  in  like  manner 
choose  the  President.  But  in  choosing  the  President 
the  votes  shall  be  taken  by  States,  the  representation 
from  each  State  having  one  vote;  a  quorum  for  this 
purpose  shall  consist  of  a  member  or  members  from 
two  thirds  of  the  States,  and  a  majority  of  all  the 
States  shall  be  necessary  to  a  choice.  In  every  case, 
after  the  choice  of  the  President,  the  person  having 
the  greatest  number  of  votes  of  the  electors  shall  be 
the  Vice-President.  But  if  there  should  remain  two  or 
more  who  have  equal  votes,  the  Senate  shall  choose 
from  them  by  ballot  the  Vice-President.]* 

*This  clause  of  the  Constitution  has  been  amended.  See  twelfth 
article  of  the  amendments. 


APPENDIX  307 

The  Congress  may  determine  the  time  of  choosing 
the  electors  and  the  day  on  which  they  shall  give  their 
votes,  which  day  shall  be  the  same  throughout  the 
United  States. 

No  person  except  a  natural-born  citizen,  or  a  citizen 
of  the  United  States  at  the  time  of  the  adoption  of 
this  Constitution,  shall  be  eligible  to  the  office  of  Presi- 
dent; neither  shall  any  person  be  eligible  to  that  office 
who  shall  not  have  attained  to  the  age  of  thirty-five 
years,  and  been  fourteen  years  a  resident  within  the 
United  States. 

In  case  of  the  removal  of  the  President  from  office, 
or  of  his  death,  resignation,  or  inability  to  discharge 
the  powers  and  duties  of  the  said  office,  the  same  shall 
devolve  on  the  Vice-President,  and  the  Congress  may 
by  law  provide  for  the  case  of  removal,  death,  resigna- 
tion, or  inability,  both  of  the  President  and  Vice- 
President,  declaring  what  officer  shall  then  act  as 
President,  and  such  officer  shall  act  accordingly  until 
the  disability  be  removed  or  a  President  shall  be 
elected. 

The  President  shall,  at  stated  times,  receive  for  his 
services  a  compensation,  which  shall  neither  be  in- 
creased nor  diminished  during  the  period  for  which 
lie  may  have  been  elected,  and  he  shall  not  receive 
within  that  period  any  other  emolument  from  the 
United  States  or  any  of  them. 

Before  he  enter  on  the  execution  of  his  office  he  shall 
take  the  following  oath  or  affirmation : 

"I  do  solemnly  swear  (or  affirm)  that  I  will  faithfully 
execute  the  office  of  President  of  the  United  States, 
and  will  to  the  best  of  my  ability  preserve,  protect,  and 
defend  the  Constitution  of  the  United  States." 

SECTION   II 

The  President  shall  be  Commander-in-chief  of  the 
A  rmy  and  Navy  of  the  United  States,  and  of  the  militia 
of  the  several  States  when  called  into  the  actual  ser- 
vice of  the  United  States;  he  may  require  the  opinion, 
in  writing,  of  the  principal  officer  in  each  of  the  execu- 


?08  OUR   CONSTITUTION 

tive  departments,  upon  any  subject  relating  to  the 
duties  of  their  respective  offices,  and  he  shall  have 
power  to  grant  reprieves  and  pardons  for  offenses 
against  the  United  States,  except  in  cases  of  impeach- 
ment. 

He  shall  have  power,  by  and  with  the  advice  and 
consent  of  the  Senate,  to  make  treaties,  provided  two 
thirds  of  the  Senators  present  concur;  and  he  shall 
nominate,  and,  by  and  with  the  advice  and  consent 
of  the  Senate,  shall  appoint  ambassadors,  other  public 
ministers  and  consuls,  judges  of  the  Supreme  Court. 
and  all  other  officers  of  the  United  States,  whose  ap- 
pointments are  not  herein  otherwise  provided  for,  and 
which  shall  be  established  by  law;  but  the  Congress 
may  by  law  vest  the  appointment  of  such  inferior  offi- 
cers, as  they  think  proper,  in  the  President  alone,  in 
the  courts  of  law,  or  in  the  heads  of  departments.. 

The  President  shall  have  power  to  fill  up  all  vacan- 
cies that  may  happen  during  the  recess  of  the  Senate, 
by  granting  commissions  which  shall  expire  at  the  end 
of  their  next  session. 

SECTION    III 

He  shall  from  time  to  time  give  to  the  Congress 
information  of  the  state  of  the  Union,  and  recommend 
to  their  consideration  such  measures  as  he  shall  judge 
necessary  and  expedient;  he  may,  on  extraordinary 
occasions,  convene  both  houses,  or  either  of  them,  and 
in  case  of  disagreement  between  them  with  respect 
to  the  time  of  adjournment,  he  may  adjourn  them  to 
such  time  as  he  shall  think  proper;  he  shall  receive 
ambassadors  and  other  public  ministers;  he  shall  take 
care  that  the  laws  be  faithfully  executed,  and  shall 
commission  all  the  officers  of  the  United  States. 

SECTION    IV 

The  President,  Vice-President,  and  all  civil  officers 
of  the  United  States  shall  be  removed  from  office  on 
impeachment  for  and  conviction  of  treason,  bribery, 
or  other  high  crimes  and  misdemeanors. 


APPENDIX  309 


ARTICLE  III 

SECTION   I 

The  judicial  power  of  the  United  States  shall  be 
vested  in  one  Supreme  Court,  and  in  such  inferior 
courts  as  the  Congress  may  from  time  to  time  ordain 
and  establish.  The  judges,  both  of  the  supreme  and 
inferior  courts,  shall  hold  their  offices  during  good 
behavior,  and  shall,  at  stated  times,  receive  for  their 
services  a  compensation  which  shall  not  be  diminished 
during  their  continuance  in  office. 

SECTION   II 

The  judicial  power  shall  extend  to  all  cases,  in  law 
and  equity,  arising  under  this  Constitution,  the  laws 
of  the  United  States,  and  treaties  made,  or  which  shall 
be  made,  under  their  authority;  to  all  cases  affecting 
ambassadors,  other  public  ministers,  and  consuls;  to 
all  cases  of  admiralty  and  maritime  jurisdiction;  to 
controversies  to  which  the  United  States  shall  be  a 
party;  to  controversies  between  two  or  more  States; 
between  a  State  and  citizens  of  another  State;  between 
citizens  of  different  States;  between  citizens  of  the 
same  State  claiming  lands  under  grants  of  different 
States,  and  between  a  State,  or  the  citizens  thereof, 
and  foreign  States,  citizens,  or  subjects. 

In  all  cases  affecting  ambassadors,  other  public  min- 
isters and  consuls,  and  those  in  which  a  State  shall 
be  a  party,  the  Supreme  Court  shall  have  original 
jurisdiction.  In  all  the  other  cases  before  mentioned 
the  Supreme  Court  shall  have  appellate  jurisdiction, 
both  as  to  law  and  fact,  with  such  exceptions  and 
under  such  regulations  as  the  Congress  shall  make. 

The  trial  of  all  crimes,  except  in  cases  of  impeach- 
ment, shall  be  by  jury;  and  such  trial  shall  be  held  in 
the  State  where  the  said  crimes  shall  have  been  com- 
mitted; but  when  not  committed  within  any  State, 
the  trial  shall  be  at  such  place  or  places  as  the  Con- 
gress may  by  law  have  directed. 


J10  OUB   CONSTITUTION 


SECTION   III 

Treason  against  the  United  States  shall  consist  only 
in  levying  war  against  them,  or  in  adhering  to  their 
enemies,  giving  them  aid  and  comfort.  No  person 
shall  be  convicted  of  treason  unless  on  the  testimony 
of  two  witnesses  to  the  same  overt  act,  or  on  confession 
in  open  court. 

The  Congress  shall  have  power  to  declare  the  pun- 
ishment of  treason,  but  no  attainder  of  treason  shall 
work  corruption  of  blood  or  forfeiture  except  during 
the  life  of  the  person  attainted. 


ARTICLE  IV 

SECTION   I 

Full  faith  and  credit  shall  be  given  in  each  State  to 
the  public  acts,  records,  and  judicial  proceedings  of 
every  other  State.  And  the  Congress  may  by  general 
laws  prescribe  the  manner  in  which  such  acts,  records, 
and  proceedings  shall  be  proved,  and  the  effect  thereof. 

SECTION   II 

The  citizens  of  each  State  shall  be  entitled  to  all 
privileges  and  immunities  of  citizens  in  the  several 
States. 

A  person  charged  in  any  State  with  treason,  felony, 
or  other  crime,  who  shall  flee  from  justice,  and  be 
found  in  another  State,  shall,  on  demand  of  the  execu- 
tive authority  of  the  State  from  which  he  fled,  be 
delivered  up,  to  be  removed  to  the  State  having  juris- 
diction of  the  crime. 

No  person  held  to  service  or  labor  in  one  State, 
under  the  laws  thereof,  escaping  into  another,  shall,  in 
consequence  of  any  law  or  regulation  therein,  be  dis- 
charged from  such  service  or  labor,  but  shall  be  deliv 
ered  up  on  claim  of  the  party  to  whom  such  service 
or  labor  may  be  due. 


APPENDIX  311 


SECTION*    III 

New  States  may  be  admitted  by  the  Congress  into 
this  Union;  but  no  new  State  shall  be  formed  or 
erected  within  the  jurisdiction  of  any  other  State;  nor 
any  State  be  formed  by  the  junction  of  two  or  more 
States  or  parts  of  States,  without  the  consent  of  the 
legislatures  of  the  States  concerned  as  well  as  of  the 
Congress. 

The  Congress  shall  have  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the 
territory  or  other  property  belonging  to  the  United 
States;  and  nothing  in  this  Constitution  shall  be  so 
construed  as  to  prejudice  any  claims  of  the  United 
States  or  of  any  particular  State. 

SECTION    IV 

The  United  States  shall  guarantee  to  every  State 
in  this  Union  a  republican  form  of  government,  and 
shall  protect  each  of  them  against  invasion,  and  on 
application  of  the  legislature,  or  of  the  executive 
(when  the  legislature  cannot  be  convened),  against  do- 
mestic violence. 


ARTICLE  V 

The  Congress,  whenever  two  thirds  of  both  houses 
shall  deem  it  necessary,  shall  propose  amendments  to 
this  Constitution,  or,  on  the  application  of  the  legis- 
latures of  two  thirds  of  the  several  States,  shall  call 
a  convention  for  proposing  amendments,  which  in 
either  case  shall  be  valid  to  all  intents  and  purposes 
as  part  of  this  Constitution,  when  ratified  by  the  legis- 
latures of  three  fourths  of  the  several  States,  or  by 
conventions  in  three  fourths  thereof,  as  the  one  or  the 
other  mode  of  ratification  may  be  proposed  by  the 
Congress,  provided  that  no  amendments  which  may  be 
made  prior  to  the  year  one  thousand  eight  hundred 
and  eight  shall  in  any  manner  affect  the  first  and 


512  OUR    CONSTITUTION 

fourth  clauses  in  the  ninth  section  of  the  first  article ; 
and  that  no  State,  without  its  consent,  shall  be  de- 
prived of  its  equal  suffrage  in  the  Senate. 

ARTICLE  VI 

All  debts  contracted  and  engagements  entered  into, 
before  the  adoption  of  this  Constitution,  shall  be  as 
valid  against  the  United  States  under  this  Constitu- 
tion as  under  the  confederation. 

This  Constitution,  and  the  laws  of  the  United  States 
which  shall  be  made  in  pursuance  thereof,  and  all 
treaties  made,  or  which  shall  be  made,  under  the  au- 
thority of  the  United  States,  shall  be  the  supreme  law 
of  the  land;  and  the  judges  in  every  State  shall  be 
bound  thereby,  anything  in  the  Constitution  or  laws 
of  any  State  to  the  contrary  notwithstanding. 

The  Senators  and  Representatives  before  mentioned, 
and  the  members  of  the  several  State  legislatures,  and 
all  executive  and  judicial  officers  both  of  the  United 
States  and  of  the  several  States,  shall  be  bound  by 
oath  or  affirmation  to  support  this  Constitution;  but 
no  religious  test  shall  ever  be  required  as  a  qualifica- 
tion to  any  office  or  public  trust  under  the  United 
States. 

ARTICLE  VII 

The  ratification  of  the  conventions  of  nine  States 
shall  be  sufficient  for  the  establishment  of  this  Consti- 
tution between  the  States  so  ratifying  the  same. 

Done  in  convention  by  the  unanimous  consent  of  the 
States  present,  the  seventeenth  day  of  September, 
in  the  year  of  our  Lord  one  thousand  seven  hun- 
dred and  eighty-seven,  and  of  the  independence  of 
the  United  States  of  America  the  twelfth.  In  wit- 
ness whereof,  we  have  hereunto  subscribed  our 
names. 

George  Washington,  President,  and  Deputy  from  VIR- 
GINIA. 


APPENDIX  313 

NEW  HAMPSHIRE — John  Langdon,  Nicholas  Oilman. 

MASSACHUSETTS — Nathaniel  Gorham,  Rufus  King. 

CONNECTICUT — William  Samuel  Johnson,  Roger  Sher- 
man. 

NEW  YORK — Alexander  Hamilton. 

NEW  JERSEY — William  Livingston,  David  Brearly, 
William  Paterson,  Jonathan  Dayton. 

PENNSYLVANIA — Benjamin  Franklin,  Thomas  Mifflin, 
Robert  Morris,  George  Clyrner,  Thomas  Fitzsim- 
ons,  Jared  Ingersoll,  James  Wilson,  Gouverneur 
Morris. 

DELAWARE — George  Read,  Gunning  Bedford,  Jr.,  John 
Dickinson,  Richard  Bassett,  Jacob  Broom. 

MARYLAND — James  McHenry,  Daniel  of  St.  Thomas 
Jenifer,  Daniel  Carroll. 

VIRGINIA — John  Blair,  James  Madison,  Jr. 

NORTH  CAROLINA — William  Blount,  Richard  Dobbs 
Spaight,  Hugh  Williamson. 

SOUTH  CAROLINA— John  Rutledge,  Charles  Cotesworth 
Pinckney,  Charles  Pinckney,  Pierce  Butler. 

GEORGIA — William  Few,  Abraham  Baldwin. 

Attest:  William  Jackson,  Secretary. 


AMENDMENTS 

ARTICLE  I 

Congress  shall  make  no  law  respecting  an  establish- 
ment of  religion,  or  prohibiting  the  free  exercise 
thereof;  or  abridging  the  freedom  of  speech  or  of  the 
press;  or  the  right  of  the  people  peaceably  to  assem- 
ble, and  to  petition  the  government  for  a  redress  of 
grievances. 


OUR   CONSTITUTION 


ARTICLE  II 

A  well-regulated  militia  being  necessary  to  the  se- 
curity of  a  free  State,  the  right  of  the  people  to  keep 
and  bear  arms  shall  not  be  infringed. 

ARTICLE  III 

No  soldier  shall,  in  time  of  peace,  be  quartered  in 
any  house  without  the  consent  of  the  owner,  nor  in 
time  of  war,  but  in  a  manner  to  be  prescribed  by  law. 

ARTICLE  IV 

The  right  of  the  people  to  be  secure  in  their  persons, 
houses,  papers,  and  effects,  against  unreasonable 
searches  and  seizures,  shall  not  be  violated,  and  no 
warrants  shall  issue  but  upon  probable  cause,  sup- 
ported by  oath  or  affirmation,  and  particularly  describ- 
ing the  place  to  be  searched,  and  the  person  or  things 
to  be  seized. 

ARTICLE  V 

No  person  shall  be  held  to  answer  for  a  capital  or 
otherwise  infamous  crime,  unless  on  a  presentment  or 
indictment  of  a  grand  jury,  except  in  cases  arising  in 
the  land  or  naval  forces,  or  in  the  militia,  when  in  act- 
ual service  in  time  of  war  or  public  danger;  nor  shall 
any  person  be  subject  for  the  same  offense  to  be  twice 
put  in  jeopardy  of  life  or  limb ;  nor  shall  be  compelled 
in  any  criminal  case  to  be  a  witness  against  himself, 
nor  be  deprived  of  life,  liberty,  or  property,  without 
due  process  of  law;  nor  shall  private  property  be  taken 
for  public  use  without  just  compensation. 

ARTICLE  VI 

In  all  criminal  prosecutions  the  accused  shall  enjoy 
the  right  to  a  speedy  and  public  trial,  by  an  impartial 
jury  of  the  State  and  district  wherein  the  crime  shall 


APPENDIX  315 

have  been  committed,  which  district  shall  have  been 
previously  ascertained  by  law,  and  to  be  informed  of 
the  nature  and  cause  of  the  accusation;  to  be  con- 
fronted with  the  witnesses  against  him;  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor, 
and  to  have  the  assistance  of  counsel  for  his  defense. 

ARTICLE  VII 

In  suits  at  common  law,  where  the  value  in  contro- 
versy shall  exceed  twenty  dollars,  the  right  of  trial  by 
jury  shall  be  preserved,  and  no  fact  tried  by  a  jury 
shall  be  otherwise  re-examined  in  any  court  of  the 
United  States,  than  according  to  the  rules  of  the  com- 
mon law. 

ARTICLE  VIII 

Excessive  bail  shall  not  be  required,  nor  excessive 
fines  imposed,  nor  cruel  and  unusual  punishments  in- 
flicted. 

ARTICLE  IX 

The  enumeration  in  the  Constitution  of  certain  rights 
shall  not  be  construed  to  deny  or  disparage  others 
retained  by  the  people. 

ARTICLE  X 

The  powers  not  delegated  to  the  United  States  by 
the  Constitution,  nor  prohibited  by  it  to  the  States,  are 
reserved  to  the  States  respectively  or  to  the  people. 


ARTICLE  XI 

The  judicial  power  of  the  United  States  shall  not  be 
construed  to  extend  to  any  suit  in  law  or  equity,  com- 
menced or  prosecuted  against  one  of  the  United  States 
by  citizens  of  another  State,  or  by  citizens  or  subjects 
of  any  foreign  State. 


316  OUR   CONSTITUTION 


ARTICLE  XII 

The  electors  shall  meet  in  their  respective  States 
and  vote  by  ballot  for  President  and  Vice-President, 
one  of  whom,  at  least,  shall  not  be  an  inhabitant  of 
the  same  State  with  themselves;  they  shall  name  in 
their  ballots  the  person  voted  for  as  President,  and 
in  distinct  ballots  the  person  voted  for  as  Vice-Presi- 
dent, and  they  shall  make  distinct  lists  of  all  persons 
voted  for  as  President  and  of  all  persons  voted  for  as 
Vice-President,  and  of  the  number  of  votes  for  each; 
which  lists  they  shall  sign  and  certify,  and  transmit 
sealed  to  the  seat  of  the  government  of  the  United 
States,  directed  to  the  President  of  the  Senate.  The 
President  of  the  Senate  shall,  in  the  presence  of  the 
Senate  and  House  of  Representatives,  open  all  the 
certificates  and  the  votes  shall  then  be  counted.  The 
person  having  the  greatest  number  of  votes  for  Presi- 
dent shall  be  the  President,  if  such  number  be  a 
majority  of  the  whole  number  of  electors  appointed; 
and  if  no  person  have  such  majority,  then  from  the 
persons  having  the  highest  numbers  not  exceeding 
three  on  the  list  of  those  voted  for  as  President,  the 
House  of  Representatives  shall  choose  immediately, 
by  ballot,  the  President.  But  in  choosing  the  Presi- 
dent the  votes  shall  be  taken  by  States,  the  representa- 
tion from  each  State  having  one  vote;  a  quorum  for 
this  purpose  shall  consist  of  a  member  or  members 
from  two  thirds  of  the  States,  and  a  majority  of  .ill 
the  States  shall  be  necessary  to  a  choice.  And  if  the 
House  of  Representatives  shall  not  choose  a  President 
whenever  the  right  of  choice  shall  devolve  upon  them, 
before  the  fourth  day  of  March  next  following,  then 
the  Vice-President  shall  act  as  President,  as  in  the 
case  of  the  death  or  other  constitutional  disability  of 
the  President. 

The  person  having  the  greatest  number  of  votes  as 
Vice-President  shall  be  the  Vice-President.  if  such 
number  be  a  majority  of  the  whole  number  of  electors 
appointed;  and  if  no  person  have  a  majority,  then  from 
the  two  highest  numbers  on  the  list  the  Senate  shall 


APPENDIX  317 

choose  the  Vice-President;  a  quorum  for  the  purpose 
shall  consist  of  two  thirds  of  the  whole  number  of 
Senators,  and  a  majority  of  the  whole  number  shall 
be  necessary  to  a  choice.  But  no  person  constitution- 
ally ineligible  to  the  office  of  President  shall  be  eligible 
to  that  of  Vice-President  of  the  United  States. 

ARTICLE  XIII 

SECTION  1.  Neither  slavery  nor  involuntary  servi- 
tude, except  as  a  punishment  for  crime  whereof  the 
party  shall  have  been  duly  convicted,  shall  exist  within 
the  United  States  or  any  place  subject  to  their  juris 
diction. 

SECTION  2.  Congress  shall  have  power  to  enforce 
this  article  by  appropriate  legislation. 

ARTICLE  XIV 

SECTION  1.  All  persons  born  or  naturalized  in  the 
United  States,  and  subject  to  the  jurisdiction  thereof, 
are  citizens  of  the  United  States  and  of  the  State 
wherein  they  reside.  No  State  shall  make  or  enforce 
any  law  which  shall  abridge  the  privileges  or  immu- 
nities of  citizens  of  the  United  States;  nor  shall  any 
State  deprive  any  person  of  life,  liberty,  or  property, 
without  due  process  of  law;  nor  deny  to  any  person 
within  its  jurisdiction  the  equal  protection  of  the  laws. 

SECTION  2.  Representatives  shall  be  apportioned 
among  the  several  States  according  to  their  respective 
numbers,  counting  the  whole  number  of  persons  in 
each  State,  excluding  Indians  not  taxed.  But  when 
the  right  to  vote  at  any  election  for  the  choice  of 
electors  for  President  and  Vice-President  of  the  United 
States,  Representatives  in  Congress,  the  executive  and 
judicial  officers  of  a  State,  or  the  members  of  the 
legislature  thereof,  is  denied  to  any  of  the  male  in 
habitants  of  such  State,  being  twenty-one  years  of  age, 
and  citizens  of  the  United  States,  or  in  any  way 
abridged,  except  for  participation  in  rebellion,  or  other 


318  OUR   CONSTITUTION 

crime,  the  basis  of  representation  therein  shall  bo 
reduced  in  the  proportion  which  the  number  of  such 
male  citizens  shall  bear  to  the  whole  number  of  male 
citizens  twenty-one  years  of  age  in  such  State. 

SECTION  3.  No  person  shall  be  a  Senator  or  Repre- 
sentative in  Congress,  or  elector  of  President  and  Vice- 
President,  or  hold  any  office,  civil  or  military,  under 
the  United  States  or  under  any  State,  who,  having 
previously  taken  an  oath  as  a  member  of  Congress, 
or  as  an  officer  of  the  United  States,  or  as  a  member 
of  any  State  legislature,  or  as  an  executive  or  judicial 
officer  of  any  State,  to  support  the  Constitution  of  the 
United  States,  shall  have  engaged  in  insurrection  or 
rebellion  against  the  same,  or  given  aid  or  comfort  to 
the  enemies  thereof.  But  Congress  may,  by  a  vote  of 
two  thirds  of  each  house,  remove  such  disability. 

SECTION  4.  The  validity  of  the  public  debt  of  the 
United  States,  authorized  by  law,  including  debts  in- 
curred for  payment  of  pensions  and  bounties  for  ser- 
vices in  suppressing  insurrection  or  rebellion,  shall  not 
be  questioned.  But  neither  the  United  States  nor  any 
State  shall  assume  or  pay  any  debt  or  obligation  in- 
curred in  aid  of  insurrection  or  rebellion  against  the 
United  States,  or  any  claim  for  the  loss  or  emancipa- 
tion of  any  slave;  but  all  such  debts,  obligations,  and 
claims  shall  be  held  illegal  and  void. 

SECTION  5.  The  Congress  shall  have  power  to  en- 
force, by  appropriate  legislation,  the  provisions  of  this 
article. 

ARTICLE  XV 

SECTION  1.  The  right  of  citizens  of  the  United 
States  to  vote  shall  not  be  denied  or  abridged  by  the 
United  States  or  by  any  State  on  account  of  race, 
color,  or  previous  condition  of  servitude. 

SECTION  2.  The  Congress  shall  have  power  to  en- 
force this  article  by  appropriate  legislation. 


r 


APPENDIX 


319 


STATISTICS  OF  ORIGINAL  STATES 


STATE. 

Date  of  rati- 
fication. 

Pop.  at 
date  of 
ratifica- 
tion. 

Slave 
pop.  in 
1790* 

Total 
pop.  in 
1900. 

Negro 
pop.  in 
1900. 

Delaware  

Dec.    7  1787 

59,096 

8  887 

184,735 

30,697 

Pennsylvania  

Dec.  12,  1787 

432,373 

6,302,115 

156.845 

New  Jersey  

Dec.  18  1787 

184  139 

1  883,669 

i;8  844 

Georgia  

Jan.    2  1788 

82,548 

29,264 

2,216,331 

1,034,813 

Connecticut  

Jan.    9,  1788 

238.141 

1J08,420 

15,226 

Massachusetts  

Feb.    6  1788 

378  787 

2,805  346 

31.974 

Apr  28   1788 

319,728 

103,036 

1,188.044 

235,064 

South  Carolina  

May  23  1788 

249,073 

107,094 

1,340,316 

782,321 

June  21,  1788 

141,899 

411,588 

622 

Virginia    

June  26,  1788 

747,610 

305,257 

1,854,184 

660,722 

New  York  

July  26.  1788 

340,120 

7,268,894 

99,232 

North  Carolina  

Nov.  21  1788 

397,751 

103,989 

1.893,810 

624,469 

Rhode  Island  

May  29,  1790 

217,353 

428,556 

9,092 

*  Slavery  had  almost  ceased  in  the  Northern  States  at  this  time. 


INDEX. 


Adams,  John,  64,  73,  180,  222. 
Adams,  John  Quincy,  89,  182. 
Adams,  Samuel,  64,  66,  218. 
Amendment,    Fourteenth,    231. 
Amendment,  Fifteenth,  231. 
Ames,  Fisher,  218. 
Antlfederalists,  The,  210. 


B 


Baltimore,  Lord,  28,  29. 

Bancroft,  44. 

Berkeley,  Sir  William,  26. 

Bernard,  Governor,  58. 

Bill    of    Rights,    American,    68, 

198,  214,  222. 
Bill  of  Rights,  English,  20,  223, 

224,  262;  Macaulay  on  the,  20. 
Bill,  The  Grab,  139,  188. 
Boston  Port  Bill,  61. 
Boston  Tea  Party,  60. 
Bryce,  James,  164,  184. 
Burke,  Edmund,  60,  65. 
Burr,  Aaron,  181. 


Cabinet,  The,  102,   131,  144,  160, 

187,  190. 
Calvin,  17. 
Canada,  49.  64. 

Carolines,  The,  39,  62,  151,  219. 
Charles  I,  19,  20,  28,  45. 
Charles  II,  20,  27,  29,  38. 
Chatham,  Lord,  65. 
Civil  Rights  Acts,  232. 
Civil  Service  Laws,  190. 
Civil  War,  148. 
Clay,   Henry,  182. 
Cleveland,  Grover,  145,  148,  193. 
Clinton,  George,  220. 


Colonies,  The,  21,  22,  33,  34,  35,  36 

37,  38,  39,  51,  52,  53,  56,  58    61, 

63,  64,  66. 
Columbia,  District  of,  Laws  for, 

161. 
Confederation,    Articles    of,    69, 

73,  76,  94,  97,  117,  120,  157,  235, 

288;  New  England,  259. 
Congress,   47,   48,   55,   59,   63,   66, 

69,  72,  76,  79,  100,  122,  131,  132, 

136,  138,  172,  185. 
Connecticut,    34,    43,    45,    68,   99; 

Fundamental  orders  of,  253. 
Constitution,   The  first  written, 

25;   The  Confederation,  45,  48, 

69,  75. 
Philadelphia  Convention,  78,  81, 

90,  97,  99,  108;   Signers  of,  84, 

87;   Articles  and  amendments, 

108,    298;    Ratification   of,   211; 

Documents  relating  to,  235. 
Copyright,  157. 

Court  of  Appeals,  Circuit,  196. 
Cranmer,  17. 
Crawford,  Will  H.,  182. 
Cromwell,  Oliver,  19,  20,  26. 


D 


Declaration  of  Independence,  21, 

68,  80.  209,  274. 
Declaration  of  Rights,  55,  56,  64, 

270. 

Delancy,  James,  50. 
Delaware,  38,  217. 
Dickinson,  81,  103. 
Dutch,  The,  34,  35,  38,  46. 


E 


Edward  VI,  17. 
Electoral  College,  100,  184. 
Elizabeth,  Queen,  17. 
Ellsworth,  80.  150. 
Emancipation  Proclamation,  228. 


320 


INDEX. 


321 


England,  Constitutional  Rights, 
18,  19,  20;  Colonies,  22,  40; 
Jurisdiction  over  colonies,  53; 
Political  beliefs  in  17th  cen- 
tury, 17;  Revolution  in,  48; 
Taxes  on  colonies,  56,  59,  60; 
War  with  colonies,  66. 

England,  King  of,  52,  57,  60,  64, 
167. 


Federal  Union,  64,  75. 

Federalist,  The,  213,  220. 

Federalists,  The   219. 

Field,  Justice,  151. 

Fiske,  John,  42,  68,  120,  220. 

Ford,  Paul  L.,  220. 

France,  Treaty  with,  72. 

Franklin,  Benjamin,  50,  56,  57, 
66,  73,  81,  90,  99,  102,  118,  206, 
207,  209,  216;  His  plan  of  union, 
266. 

French,  The,  41,  46,  48. 


Gadsden,  Christopher,  55,  62,  64. 
George  III,  55,  57,  58,  67. 
Georgia,  39,  82,  151,  153. 
Gerry,   Elbridge,  80,  83,  98,  100, 

120,  128,  174,  206,  207,  214. 
Griffen,  Cyrus,  221. 


Hamilton,  Alex.,  78,  82,  93,  97, 
132,  159,  163,  169,  174,  177,  181, 
186,  197,  203,  209,  215,  216,  220. 

Hancock,  John,  66. 

Harrison,  Benjamin,  216. 

Hayes,  R.  B.,  182. 

Henry,  Patrick,  51,  54,  63,  64,  65, 
73.  216. 

Hooker,  Thomas,  43,  46. 

Hudson,  Henry,  34. 


Indiana,  40,  46,  49. 


Jackson,  William,  90. 
James  I,  17,  18,  21,  22. 


James  II,  20,  34,  48. 

Jay,  John,  64,  73,  77,  220. 

Jefferson,  Thomas,  63,  64,  68,  145, 

163,   180. 

Johnson,  Andrew,  130,  132. 
Johnson,  William,  80. 
Johnston,  Alexander,  42. 
Judicial    System,    Federal,    194, 

195. 


King,  Rufus,  170. 
Knox,  John,  17,  20. 


Langdon,  John,  81,  150. 

Laurens,  Henry,  73. 

Dee,  Henry,  213,  216. 

Lee,  Richard  Henry,  64,  213. 

Leisler,  Jacob,  42. 

Lincoln,  Abraham,  130,  161,  200, 

228. 

Livingston,  81. 
Lodge,  Henry  Cabot,  42. 
Louis  XIV,  48. 
Lowndes,  Rawlin,  219. 


M 

Macaulay  on  the  Bill  of  Rights, 

20. 
Madison,  James,  78,  80,  83,  88,  90, 

93,   100,   103,   117,   121,   128,   139, 

150,  176,  213,  216,  220. 
Magna  Charta,  18,  19,  166,  236. 
Marshall,  John,  216. 
Maryland.  28,  78,  152,  219. 
Mason,   George,  86,   98,  150,   153, 

177,  206,  207,  209,  214. 
Massachusetts,  36,  37,  43,  46,  52, 

55,  57,  62,   76. 

Mayflower  Compact,  35,  42. 
Missouri  Compromise,  226. 
Morris,  Gouverneur,  82,  97,  117, 

127.   150,  176,   177. 


N 


Navigation  Acts,  26. 

New  England,  45,  51,  66,  152,  113, 

165. 
New  Hampshire,  37,  38,  220. 


322, 


INDEX. 


New  Jersey,  79. 
New  York,  60,  62,  77,  78,  226. 
North,  Lord,  60. 
Northwest,    Ordinances   for   the 
government  of,  278,  279. 


Oglethorpe,  James,  39. 
Otis,  James,  52,  55. 


Parliament,  19,  20,  26,  53,  56,  58, 

61,  64,  67,  72,  167,  213. 
Patent  Rights,  158. 
Paterson,    William,    81,    82,    93, 

108. 
Penn,  William,   38,  48;    Plan  of 

union,  49. 
Pennsylvania,  217. 
Petition  of  Rights,  19. 
Pierce,  William,  82. 
Pinckney,  Charles,  89,  93,  97,  102, 

152,  174,  177,  181,  207. 
Pinckney,  Cotesworth,  219. 
Plymouth  Colony,  36. 
Plymouth  Compact,   251. 
President,  The,  47,  90,  100,  102, 

124,  131,  138,  144,  157,  172,  174, 

185,  186,  189,  192,  222. 


Q 


Quebec  Act,  61. 


R 


Randolph,    Edmund,    83,    93,    97, 

100.  102,  108,  144,  150,  174,  177, 

202. 

Randolph,  John,  206,  209. 
Randolph,  Peyton,  64. 
Repeal  Act.  56,  58. 
Representatives,    House    of,    98, 

114,  118,  128,  130,  133,  135,  176, 

225. 

Revolution,  American,  53,  66. 
Rhode  Island,  37,  80,  92. 
Rutledge,  John,  64,  73,  80,  177. 


S 


Scott,  Dred,  decision,  227,  228. 

Senate,  The,  98,  104,  125,  126,  129, 
135,  138,  190. 

Sherman,  Roger,  83,  99,  103,  143, 
178. 

Singletary,  Amos,  218. 

Slavery  in  colonies,  63;  Ques- 
tion of,  at  Constitutional  Con- 
vention, 121,  152,  153,  165; 
Fugitive  Slave  Law,  200,  225, 
227,  228,  233. 

Smith,  Captain  John,  23. 

Smith,  Melanchthon,  221. 

Speaker,  The,  123,  136. 

Stamp  Act,  53,  55,  56. 

State  Rights,  46,  75,  139,  155,  171, 
212. 

Strong,  Caleb,  81. 

Stuarts,  The,  17. 

Sumter,  Thomas,  219. 

Supreme  Court,  The,  144, 148, 150, 
158,  171,  194,  198,  227. 


Tariff  Bills,  145. 
Tea  Act,  The,  59,  60. 
Tilden,  Samuel  J.,  183. 
Treasury,  Secretary  of  the,  169. 
Tyler,  John,  216. 


U 

Union,     American, 
plan  of,  49. 


44;     Penn's 


Vice-President,    The,    128,    129, 

175,  185,  187,  222. 
Virginia,  22,  24,  27,  29,  54,  59,  62. 

63,  80,  86,  89,  121. 

W 

War,  Secretary  of,  159. 

Washington,  George,  49,  59,  62. 
63,  66,  71,  73,  74,  76,  78,  80,  84, 
90,  102,  109,  162,  180,  192,  195, 
206,  209,  210,  215,  216,  222. 

Wilson,  James,  81,  102,  173,  186. 
195,  202,  208,  216. 

Writs  of  Assistants,  52, 


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